Consequential Damages

"Acts done in the proper exercise of governmental powers, and not
directly encroaching upon private property, though their consequences
may impair its use, are universally held not to be a taking within the
meaning of the due process clause."[664] Accordingly, consequential
damages to abutting property caused by an obstruction in a street
resulting from the authorization of a railroad to erect tracks, sheds,
and fences over a portion thereof have been held to effect no
unconstitutional deprivation of property.[665] Likewise, the erection
over a street of an elevated viaduct, intended for general public travel
and not devoted to the exclusive use of a private transportation
corporation, has been declared to be a legitimate street improvement
equivalent to a change in grade; and, as in the case of a change of
grade, the owner of land abutting on the street has been refused damages
for impairment of access to his land and the lessening of the
circulation of light and air over it.[666]

Limits to the Above Rule.--There are limits however, to the
amount of destruction or impairment of the enjoyment or value of private
property which public authorities or citizens acting in their behalf may
occasion without the necessity of paying compensation therefor. Thus, in
upholding zoning regulations limiting the height of buildings which may
be constructed in a designated zone, the Court has warned that similar
regulations, if unreasonable, arbitrary, and discriminatory, may be held
to deprive an owner of the profitable use of his property and hence to
amount to a taking sufficient to require compensation to be paid for
such invasion of property rights.[667] Similarly, in voiding a statute
forbidding mining of coal under private dwellings or streets or cities
in places where such right to mine has been reserved in a conveyance,
Justice Holmes, speaking for his associates, declared if a regulation
restricting the use of private property goes too far, it will be
recognized as a taking for which compensation must be made. "Some values
are enjoyed under an implied limitation, and must yield to the police
power. But obviously the implied limitation must have its limits, * * *
One fact for consideration in determining such limits is the extent of
the diminution. * * * The damage [here] is not common or public. * * *
The extent of the taking is great. It purports to abolish what is
recognized in Pennsylvania as