an be characterized as a physical invasion by government."7 It is usually easier for the courts to find a taking when the property has been physically invaded by the government. The courts are likely not to find a taking when it is a regulatory taking. A regulation must achieve a legitimate governmental purpose, and the courts usually defer to the legislation as to whether or not the regulation accomplishes that. The courts have been more likely to find a taking if the application of the regulation results in a taking of the plaintiff's property. The fact that the landowner may be receiving rental payments for his property may impact adversely on whether a lease of unlimited duration is found to be a taking. Several plaintiff/property owners in California courts have omitted the allegation that the inadequacy of rental payments constitutes a taking, perhaps because they believed that receipt of rental payments, even though inadequate, would defeat their argument that a lease of unlimited duration was a taking if they were compensated. Instead, plaintiffs have focused on non-economic property rights.
The new emphasis on non-economic property rights was apparent in the 1979 case Kaiser Aetna v. United States.8 In Kaiser Aetna, the government claimed a right of public access to a private marina constructed by the plaintiff, a right which would have diminished substantially the value of the plaintiff's property. The Court held that the government's action was an unconstitutional taking, stating that the "right to exclude," so universally held to be a fundamental element of the property right, falls within the category of interests that the Government cannot take without compensation. This stress on the importance of the "right to exclude" is noteworthy because the Court could have reached the same result solely by reference to the infringement of the plaintiff's economic interests. Instead, the Court's approach appeared to ap...