A house with a view.

• Author: Biber, Eric
• Position: Florida - Case Note

Lee County v. Kiesel, 705 So. 2d 1013 (Fla. Dist. Ct. App. 1998).

I

The facts of Kiesel are quite simple. The Kiesels had purchased riverfront property and built a home on the land. The county then built a bridge that obstructed the Kiesels' view of the river from their property. Although the bridge did not physically encroach upon their property, the Kiesels filed suit, alleging that the county had taken their property without compensation.(3) At trial, the plaintiffs' expert witness testified that the bridge's obstruction of the river view had reduced the property's value by over $300,000.(4) The trial court found a taking, and the appellate court affirmed.(5)

At first, the decision seems mysterious under takings law. The Supreme Court has held that a per se taking of private property arises from a government's "permanent physical occupation" of the property.(6) The county, however, never actually occupied any of the Kiesels' property. Yet the Florida court "reject[ed] the county's argument that there was no physical taking here."(7)

The explanation is that the Florida court was interpreting Florida's riparian rights, "one of which is the right to an unobstructed view over the water to the channel. These rights constitute property, which the government may not take or destroy without paying just compensation to the owners."(8) Thus, the obstruction "involved an actual physical intrusion to an appurtenant right of the Kiesels' property ownership."(9)

II

While an unobstructed view of a river from riparian property might seem an unusual property right, other courts have recognized similarly unusual rights. Restricting access to a property by closing nearby streets may be a taking, even where government actions do not encroach upon the property.(10) The classic English case of Keeble v. Hickeringill(11) provides another example. In Keeble, the court held that a neighbor's use of explosives to scare ducks from the plaintiff's pond constituted an actionable tort, even though the explosives detonated on the neighbor's property.(12)

American courts have generally allowed the state and federal governments to regulate the hunting of wildlife by landowners and others.(13) Nonetheless, the holding of Kiesel could expand to give landowners the right to see and enjoy the wildlife on their property.(14) Environmentalists should press to expand the holding of Kiesel, which recognized the right to an unobstructed view of a river, to include the right to an unobstructed view of wildlife. Both rights can be important factors when a landowner purchases property, and may have an impact on the value of the property.(15) Government infringement of the right to view wildlife would, under Kiesel, constitute a taking through physical invasion of the landowner's property.(16) For example, a landowner may enjoy observing a bird population on his property. If the government drains a wetland on neighboring property that provides critical habitat for that bird population, the property owner could then sue the government for compensation. By destroying the wildlife that the property owner viewed on his property, the government has physically invaded a part of his property, and owes compensation.

Using Kiesel to expand property rights could have consequences beyond the confines of takings jurisprudence. Landowners should enforce their property right to view wildlife against neighbors who destroy wildlife resources that the claimants view and enjoy on their own property.(17) For example, the neighbor might drain wetlands essential to the survival of birds that roost on the plaintiff's property. Under the principle of Kiesel, the plaintiff landowner would sue his neighbor for trespass.(18) The court in Kiesel held that construction of the bridge constituted a physical invasion that required compensation by the government; the analogous cause of action when a private actor physically invades another private party's property is trespass. The landowner could seek either an injunction or compensation.(19)

Environmental plaintiffs should extend these arguments to other environmental resources. Landowners could argue that Kiesel implies that riparian landowners have the right to view and to use not just any river, but a clean, free-flowing, and unspoiled river. The diminution in property value because of the obstruction of their river view established the Kiesels' takings claim. It is entirely possible, however, that an equal diminution in value of their property would have occurred if the river had instead been turned into an open sewer by the government, mining its scenic value. Both harms should be compensated.(20) Such a property right, protected by takings and trespass law against physical invasion, could discourage further intrusions by thirsty western cities on the riparian rights of rural landowners by requiring compensation for the damage to the rivers.(21)

Environmental advocacy groups following this strategy should look for a test case with facts such as these: A nonprofit conservation organization owns and maintains a preserve specifically for the protection and observation of a species of wildlife. A state government is attempting to construct a highway through the feeding grounds of a rare bird species that roosts nearby, on the conservation organization's refuge. Destruction of the feeding grounds would eliminate the rare bird species from the area, and thus eliminate the refuge's usefulness to its owner. The organization could file a takings claim alleging a direct physical invasion of its property rights to observe, enjoy, and protect the animal species. As in Kiesel, even though the...