(dissenting) —
The ministers of the king cannot undermine, weaken, or impair any of the walls or foundation of any houses, be they mansion-houses, or out-houses, or barns, stables, dove-houses, mills, or any other buildings: and they cannot dig in the floor of my mansion-house which serves for the habitation of man; for this, that my house is the safest place for my refuge, safety and comfort, and of all my family; as well in sickness as in health, and it is my defence in the night and in the day, against felons, misdoers, and harmful animals; and it is very necessary for the weal public, that the habitation of subjects be preserved and maintained.[12]
I posit if government seizure and confiscation of one’s living room wall is not a compensable taking, the words of our state Declaration of Rights have lost their meaning:
No private property shall be taken or damaged for public or private use without just compensation having been first made....
Wash. Const, art. I, § 16. The language of this provision yields but three questions: (1) Is this property?; (2) Was it taken or damaged?; and (3) Has just compensation been *779paid? Unlike today’s majority opinion, the constitution does not except from its plain language property which is seized for evidentiary purposes, and there are no “words” in this provision of our constitution which could possibly have been understood at the time of its ratification to justify such an exception. Cf. State v. Brunn, 22 Wn.2d 120, 139, 154 P.2d 826 (1945); majority at 769 (“The words of the constitution are interpreted as they would have been commonly understood at the time the constitution was ratified.”).
Rather the majority attempts to engraft a loosely phrased “police power” exception to the takings clause in a context quite different from that where a discussion of the police power might be reasoned or relevant.
In the spirit of what happened to Mrs. Eggleston’s house, I suggest we “deconstruct” the majority’s argument, and then test its strength at its foundation.
But this task may require a shovel and flashlight since these foundations are not clearly visible. Indeed it appears the majority concedes the essentials of a takings claim since it recognizes, as it must, that Mrs. Eggleston’s property has been taken, no compensation has been paid, and the seizure was consistent with “[t]he talisman of a taking [which] is government action which forces some private persons alone to shoulder affirmative public burdens, ‘which, in all fairness and justice, should be borne by the public as a whole.’ ” Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 964, 954 P.2d 250 (1998) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 4 L. Ed. 2d 1554 (1960)).
Rather than applying plain text and principled theory to examine the question, the majority appears to incant “police power” as some sort of mystical excuse to cart away part of a person’s house without paying for it.
In this context the majority does at least concede “the term [police power] must be understood in the more limited sense as it was then [1889], not necessarily now.” Majority at 768 n.6. But the majority does not tell us what was *780ordinarily meant by the term in 1889 in the context of a takings claim, let alone this one, much less reconcile the purported doctrine with our constitutional text. Further foundation work therefore seems warranted.
To begin, I do not see “regulatory” taking jurisprudence particularly germane since “regulatory” takings typically involve governmental restrictions on use as opposed to outright seizure, occupation, or physical invasion. See San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 652-53, 101 S. Ct. 1287, 67 L. Ed. 2d 551 (1981) (Brennan, J., dissenting). We therefore must recognize the facts of this case plainly bespeak of a physical invasion, physical seizure, and confiscation, not an alleged regulatory taking by excessive use restriction.
This having been said, it is certainly true that our court, and other courts in general, have recognized certain exercises of the police power may not yield a subject for compensation under the fifth amendment to the United States Constitution or article I, section 16 of the state constitution. One such case, cited and relied upon by the majority, is Conger v. Pierce County, 116 Wash. 27, 36, 198 P. 377 (1921). Conger was an action to recover damages caused by erosion resulting from county changes and improvements to the Puyallup River bank. The county defended by claiming that while the damage admittedly occurred, it was a consequence of the county’s legitimate exercise of the police power and therefore not subject to compensation. While our court recognized the theory, it found it inapplicable to those facts because the improvements were not made “to preserve public health, peace, morals or welfare,” but rather to reclaim large tracts of wasteland. Conger, 116 Wash, at 38. This, opined the court, was an exercise of the power of eminent domain, not a legitimate exercise of the police power, no matter what the government called it. Such is also the distinction I think relevant here.
Referring to the police power, Conger noted:
*781Because of its elasticity and the inability to define or fix its exact limitations, there is sometimes a natural tendency on the part of the courts to stretch this power in order to bridge over otherwise difficult situations, and for like reasons it is a power most likely to be abused. It has been defined as an inherent power in the state which permits it to prevent all things harmful to the comfort, welfare and safety of society. . . . Regulating and restricting the use of private property in the interest of the public is its chief business. ... It does not authorize the taking or damaging of private property in the sense used in the constitution with reference to taking such property for a public use.
Conger, 116 Wash, at 35-36.
Conger further illuminates the doctrine by reference to 1 John Lewis, A Treatise on the Law of Eminent Domain § 6 (2d ed. 1900):
“Everyone is bound so to use his own property as not to interfere with the reasonable use and enjoyment by others of their property. For a violation of this duty the law provides a civil remedy. Besides this obligation, which every property owner is under to the owners of neighboring property, he is also bound so to use and enjoy his own as not to interfere with the general welfare of the community in which he lives. . . . Whatever restraints the legislature imposes upon the use and enjoyment of property within the reason and principle of this duty, the owner must submit to, and for any inconvenience or loss which he sustains thereby, he is without remedy. It is a regulation, and not a taking, an exercise of police power, and not of eminent domain. But the moment the legislature passes beyond mere regulation, and attempts to deprive the individual of his property, or of some substantial interest therein under the pretense of regulation, then the act becomes one of eminent domain, and is subject to the obligations and limitations which attend an exercise of that power.”
Conger, 116 Wash, at 36-37. Although the majority cites Conger for the proposition that “[t]he gathering and. preserving of evidence is a police power function, necessary for the safety and general welfare of society,” majority at 768, there is nothing whatsoever in Conger to suggest or support *782that proposition. To the contrary Conger distinguishes between police power regulations which restrict the harmful use of property on the one hand and “attempts to deprive the individual of his property,” an exercise of eminent domain, on the other.
I posit the case at bar is obviously of the latter category since there was nothing harmful or offensive about the walls which were removed nor did the removal of the walls have anything to do with any governmental purpose or regulation to restrict its harmful use. By all accounts, these walls were innocent.
Ernst Freund’s 1904 treatise put it quite succinctly: “[I]t may be said that the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful.” Ernst Freund, The Police Power: Public Policy and Constitutional Rights § 511, at 546-47 (1904).13 This text was written close to the birth of our Declaration of Rights and reflects its Zeitgeist.
The distinction between the prevention of harmful activities, which may not be a taking, and the acquisition of private property for the public good, which is a taking, is unfortunately lost on our majority, although it is recognized or at least applied in most of the cases cited by the majority.
*783In Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992), for example, the distinction was applied to state the police power regulations which abate nuisances, for which no compensation for a taking is required as opposed to restrictions on uses “previously permissible under relevant property and nuisance principles,” id. at 1029-30, which do require compensation. Viewed in this light, earlier Supreme Court cases to the same effect, including Mugler v. Kansas, 123 U.S. 623, 8 S. Ct. 273, 31 L. Ed. 205 (1887) (law prohibiting manufacture of alcoholic beverages not a taking) and Miller v. Schoene, 276 U.S. 272, 48 S. Ct. 246, 72 L. Ed. 568 (1928) (order to destroy diseased cedar trees to prevent infection of nearby orchards not a taking), make perfect sense.
And the doctrine fits neatly within the plain meaning of the words of our state constitution as well, since “property” is certain rights pertaining to a thing, not the thing itself.14 “Property” is therefore often analogized to a bundle of sticks representing the right to possess, exclude, alienate, etc. Mfr’d Hous. Cmtys. of Wash. v. State, 142 Wn.2d 347, 366-67, 13 P.3d 183 (2000). However, one stick not in the bundle is the right to use one’s property in a manner harmful to one’s neighbor. Consequently restrictions designed to abate harmful uses or nuisances do not take “property” because there is no property right to do these things in the first instance, i.e., no property right for the government to take.15 We have recognized “ [i] t is permis*784sible for legislative bodies to wield police power to prevent activities which are similar to public nuisances.” Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 15, 829 P.2d 765 (1992). This principle can be traced all the way back to de Glanville’s admonition in 1187 that “a person may not use his or her own property to the detriment of another.” Steven J. Eagle, Regulatory Takings § 3-2, at 218 (2d ed. 2001) (citing David A. Thomas, Thompson on Real Property § 72.02 (1994) (quoting Ranulf de Glanville, The Laws and Customs of the Kingdom of England or De Legibus et Consuetudinibus Regni Angliae (1187-1189) bk. 13, chs. 32-39, at 334-43 (John Beame trans., 1812))).
Of course seizure of Mrs. Eggleston’s walls is not an effort to prevent the use of the walls to the detriment of someone else but is rather a confiscation to facilitate the criminal process, a public good if there ever was one. Jails and courthouses also facilitate the criminal process. But if the government attempts to seize one from a private owner, it must do so the old fashioned way: pay for it. And when the government takes Mrs. Eggleston’s walls out of her house, equally it must pay for the walls because it is not exercising its police power to prevent the harmful use of property but rather its eminent domain power to seize private property for public use. In Freund’s parlance, it takes the walls because they are useful to the public, not because the walls are harmful.
Last, I come to the majority’s discussion of out-of-state cases which have denied compensation to owners of property seized for evidentiary purposes.
At the top of the majority’s list is Emery v. Oregon, 297 Or. 755, 688 P.2d 72 (1984). Emery involved a truck seized as evidence in a criminal prosecution, dismantled and ultimately returned to the owner in pieces. A majority of the Oregon Supreme Court rejected a takings claim, analogiz*785ing to Hurtado v. United States, 410 U.S. 578, 93 S. Ct. 1157, 35 L. Ed. 2d 508 (1973), a case which denied reasonable compensation under the Fifth Amendment (not the Washington Constitution) to aliens detained and incarcerated as material witnesses. True, the United States Supreme Court denied a takings claim under those facts, but it is certainly more than arguable that the obligation to attend a proceeding as a material witness is not “property” in the constitutional sense.16 And imposing the obligation on one to attend trial as a witness arguably lacks the transferability attribute that is normally associated with eminent domain. See William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 599 (1972) (“it is a power of government by which property of private persons maybe transferred to the government. . . .”). Moreover, none of the cases cited in Hurtado involved takings claims stemming from the seizure of physical evidence.
I also note the strong dissent by former Oregon Supreme Court Justice Hans Linde, an acknowledged state constitutional law expert and also former law clerk to Washington’s own Justice William O. Douglas.17 Linde opined: “If the state needs to disassemble, destroy, or substantially damage such property in the course of its investigation, the state either must reassemble, repair, or replace the property or bear the owner’s cost in having this done.” Emery, 297 Or. at 767-68. Linde’s criticism of the majority analysis was quite incisive:
Faced with this holding, the majority in this court in turn needlessly pronounces some very questionable constitutional law. Those pronouncements are questionable because the state doubtless would have to pay compensation if it used plaintiffs’
*786pickup truck for some other public purpose, for instance for transportation, and the compensation would take into account any diminution in value from wear and tear or damage during the state’s use. The majority’s conclusion that failure to return or restore property used as evidence in unharmed condition does not require compensation, hangs entirely on an analogy with decisions holding that private persons have no constitutional claim to be compensated for serving as witnesses or jurors.
. . . But there is no need to pursue these analogies, for plaintiffs have made no claim to be compensated for the state’s temporary taking of their pickup truck, and without such a claim the state understandably has not invoked any analogy to the public duty to testify or serve as a juror.
The majority’s constitutional law also is questionable because it has no principled limits. First, it is by no means limited to the present facts. Property used for evidence may belong to anyone, to a bystander, a landlord, or a business that happens to have the requisite item. The majority’s holding would be the same if the vehicle cut up in the state’s investigation belonged to Hertz or Avis. The holding would apply if the dismantled property [were] a Greyhound bus or someone’s motor home, an expensive camera or a fine watch. It would be the same if the vehicle belonged to the victim of the crime or had been stolen from some third person. Under the majority’s theory, all that these victims would be entitled to have returned or restored to them are the pieces left after the state destroyed the vehicle in its investigation.
Id. at 768-70 (footnote omitted).
I agree with Justice Hans Linde that the Oregon Supreme Court’s treatment of this issue is not persuasive. Accordingly there is no reason to follow it.
By the same token, Soucy v. New Hampshire, 127 N.H. 451, 506 A.2d 288 (1985) (written by then state supreme court Justice Souter), which denied a takings claim by an apartment house owner who was prevented from repairing the building because it was needed in an arson investigation, is also unpersuasive. First, the New Hampshire Supreme Court characterized the governmental action as an *787exercise of the judicial power, not the police power. The court then attempted to “balance” the cost to the private property owner against the benefit inuring to the government if it were required to pay nothing, relying heavily on Emery v. State and its analogy to compelled testimony.
Aside from the weakness of Emery previously noted, I find the New Hampshire case unpersuasive because it undermines the most fundamental principle of takings law: no individual should be required to shoulder the cost of providing public goods absent just compensation. Of course it is cheaper for government to steal property than to pay for it, but the takings clause is there precisely to challenge government’s propensity to achieve its “desire by a shorter cut than the constitutional way of paying for the change.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S. Ct. 158, 67 L. Ed. 322 (1922).
But I do find the Texas Supreme Court’s analysis in Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980) very persuasive. There, owners and residents of a house brought suit against the city for property damage suffered when the police set fire to their home in an effort to recapture escaped convicts hiding in the house. The Texas Supreme Court reversed a lower court dismissal of a claim under article I, section 17 of the Texas Constitution, which provides “ ‘No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made ....’” Id. at 788 (quoting Tex. Const, art. I, § 17). The Texas Supreme Court held:
The City argues that the destruction of the property as a means to apprehend escapees is a classic instance of police power exercised for the safety of the public. We do not hold that the police officers wrongfully ordered the destruction of the dwelling; we hold that the innocent third parties are entitled by the Constitution to compensation for their property.
Id. at 793. I can think of no reason why Mrs. Eggleston should not be afforded similar treatment under our state constitution. Certainly her property was taken, she was paid nothing, and she is being required to shoulder a public *788burden which, in all justice, should be borne by all of society, not herself alone.
I therefore dissent.
The Case of the King’s Prerogative in Saltpetre, 12 Coke 12,77 Eng. Rep. 1294, 1296 (K.B. 1606) (Lord Coke).
An extremely articulate explanation is also provided by Roger Pilón:
We come then to the basic question: When does government have to compensate owners for the losses they suffer when regulations reduce the value of their property? The answers are as follows.
First, when government acts to secure rights—when it stops someone from polluting on his neighbor or on the public, for example—it is acting under its police power and no compensation is due the owner, whatever his financial losses, because the use prohibited or “taken” was wrong to begin with. Since there is no right to pollute, we do not have to pay polluters not to pollute. Thus, the question is not whether value was taken by a regulation but whether a right was taken. Proper uses of the police power take no rights. To the contrary, they protect rights.
Second, when government acts not to secure rights but to provide the public with some good—wildlife habitat, for example, or a viewshed or historic preservation—and in doing so prohibits or “takes” some otherwise legitimate use, then it is acting, in part, under the eminent domain power and it does have to compensate the owner for any financial losses he may suffer.
Roger Pilón, When is Compensation Required?, Cato Handbook for the 107th Congress 210 (Jan. 10, 2001), available at http://www.cato.org/pubs/.
William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 600 (1972).
See Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 Colum. L. Rev. 1630, 1635 (1988) (“The distinction between harm and benefit also has historical roots traceable to the influence it had upon the drafters and ratifiers of the fifth amendment. It is well accepted, for example, that the drafters of the fifth amendment were greatly familiar with Blackstone’s legal commentaries. Blackstone defined property as that claim and exercise ‘over the external things of the world, in total exclusion of the right of any other individual in the universe.’ Blackstone’s notion of ‘total exclusion’ thus denies the existence of a property right when there is an interference with, or harm to, another’s property. Legal dictionaries at the time of the founding paralleled Blackstone, noting that the law precluded the use of property in a manner that would ‘injure his neighbor.’ [n. 34: E.g., G. Jacob, A New Law *784Dictionary (10th ed. London 1782)]. Significantly, the drafter of the taking clause, James Madison, incorporated the Blaekstonian definition in his writing on property and specifically excluded uses of property that harmed others by not Teavfing] to every one else the like advantage.’ ” (footnote omitted)).
“ ‘Anyone who frees himself from the crudest materialism readily recognizes that as a legal term property denotes not material things but certain rights.’ ” See William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 600 n.154 (1972) (quoting Morris R. Cohen, Property and Sovereignty, 13 Cornell L. Q. 8, 11 (1927)).
Justice Robert P. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 508 (1984).