2010

Not a landmark case, but one worth noting. In Mathews v. City of Chattanooga, No. E2009-01418-COA-R3-CV (Sep. 15, 2010), the Tennessee Court of Appeals rejected the property owner’s claim that the city exceeded the scope of a utility easement when it installed fiber optic cable. The property owner asserted the easement was limited to electric service.

The trial court entered summary judgment for the city on the basis of the statute of limitations because the plaintiff had waited too long from the time the fiber optic cable was installed to assert his claim. The court of appeals affirmed, but on different grounds. It wasn’t a matter of time, the court held, because the plaintiff had no claim for inverse condemnation at all. The city “had the unquestioned lawful right to install the fiber optic cable within the easement for the transmission of electric service,” slip op. at 3, and…

Continue Reading Tennessee App: No Inverse Condemnation When Utility Used Electricity Easement For Fiber Optic Cable

We’ve been kind of light on the blogging lately (epic road trip combined with brief writing does not a happy blogger make), but we did want to give a heads-up that our Owners’ Counsel of America colleagues Dennis Dunphy and Jill Gelineau have launched a new blog focusing on condemnation and land use issues in the Pacific Northwest. They are partners in Schwabe Williamson & Wyatt (in Seattle and Portland, respectively) and will focus on condemnation issues in the region.

They’ve actually been blogging since early 2010, but have recently picked up steam.

Check out Schwabeblog: Condemnation. Worth following.Continue Reading New Condemnation Law Blog Focuses On Pacific Northwest

Here are the latest briefs in United States v. Tohono O’odham Nation, No. 09-846, (cert. granted Apr. 19, 2010), the case involving the subject matter jurisdiction of the Court of Federal Claims currently awaiting argument in the U.S. Supreme Court. Disclosure: we filed an amicus brief supporting the Tohono O’odham Nation in the case.

Here are the other briefs in the case:

More on the case here. Oral argument is set for November 1, 2010.

    Continue Reading Latest Briefs In Supreme Court Case On CFC Jurisdiction

    The Supreme Court’s multiple opinions in Stop the Beach Renourishment v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592 (2010), although unanimous in concluding that the Florida Supreme Court’s decison was not a judicial taking, were not the last words on the subject. Six justices concluded that in the right circumstances, a decision by a state supreme court would violate the takings or due process clauses, while the remaining two justices concluded that some future case might be the right vehicle to decide whether a court decision could take property.  

    Our suspicions that the case marked the opening of the judicial takings canon and not its closing were quickly confirmed. Last week, we posted this cert petition in another beach case from Hawaii that draws the takings question more precisely than Stop the Beach Renourishment, and earlier we asked “Why Isn’t This A ‘Judicial Taking?’…

    Continue Reading New Cert Petition: More Judicial Takings, This Time From Montana

    The Federalist Society has published an assessment of the Washington Supreme Court’s approach to state constitutional law, and to us the most interesting part is the first section on property rights in the Evergreen State.

    Michael Bindas, David K. DeWolf & Michael J. Reitz, The Washington Supreme Court and the State Constitution: A 2010 Assessment (July 2010 ).

    For the latest from the Washington Supreme Court on property rights, see Proctor v. Huntington, No. 82326-0 (Aug. 19, 2010), in which a 5-4 majority of the court solved an encroachment problem by ordering the encroached-upon landowner to sell his land to his encroaching neighbor. We asked “Why Isn’t This A ‘Judicial Taking?’“Continue Reading Federalist Society On The Washington Supreme Court’s Approach To Property Rights

    My Damon Key colleague Rebecca A. Copeland has launched a new blog focused on appellate issues in Hawaii and elsewhere. Appropriately titled “The Record on Appeal,” Rebecca’s blog starts off with this post, and quickly moves on to substance, analyzing the Hawaii Supreme Court’s recent decision on the legality of state worker furloughs.

    Rebecca should be familar to the readers of this blog, as she recently guest-blogged on Justice Recktenwald’s Intermediate Court of Appeals opinions, and was our person-on-the-scene when we live blogged the Senate Judiciary Committee’s hearings on the appointment of Katherine Leonard as Chief Justice. Rebecca’s background gives her special insight into appellate issues; prior to joining Damon Key, she was a Deputy Solicitor General for the State of Hawaii, where she argued important appeals for the State, and she has argued cases in the Hawaii and Texas appellate courts, as well as the Fifth and Ninth…

    Continue Reading New Law Blog: The Record On Appeal

    Check it out: the William and Mary Property Rights Project and the Institute of the Bill of Rights Law will present the 7th Brigham-Kanner Property Rights Conference on September 30 to October 1, 2010. The recipient of this year’s prize is lawprof Carol M. Rose (U. Arizona).

    More information, including a link to registration information here, from the Owners’ Counsel of America blog.
    Continue Reading Upcoming Conference: 7th Annual Brigham-Kanner Property Rights Conference (9/30)

    The littoral property owners who won a partial victory in the Hawaii appellate courts have filed this cert petition asking the U.S. Supreme Court to review the decision of the Hawaii Intermediate Court of Appeals which concluded that ownership of beachfront property includes only a partial right to accreted land. In Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), the ICA held that held that “Act 73” (codifed here and here), the statute in which the legislature simply redefined accretion as public propertywas a taking, but accepted the State’s argument that Act 73 did not affect a taking of what it called “future” accretion, because the right is simply a contingent future interest.

    In Act 73, the Hawaii Legislature changed over a century of common law and declared that title to shoreline land naturally accreted cannot…

    Continue Reading Cert Petition In Hawaii Beach Takings Case: Is The Right To Accretion A “Property” Interest?

    Last week, we filed an amicus brief in United States v. Tohono O’odham Nation, No. 09-846, (cert. granted Apr. 19, 2010). Why is a case involving the Indian Tucker Act and the technicalities of the Court of Federal Claims’ subject matter jurisdiction showing up in the pages of this blog? In addition to being a fascinating case, a claimed limitation on the CFC’s jurisdiction is of interest to anyone who follows regulatory takings actions against the federal goverment, as the brief makes clear.

    For more than a century, the federal government has held substantial funds and 2.9 million acres of land in Arizona in trust for the Tohono O’odham Nation. In United States v. Tohono O’odham Nation, No. 09-846, (cert. granted Apr. 19, 2010), the Supreme Court is considering whether the Court of Federal Claims has jurisdiction over the the Nation’s claim against the federal government for…

    Continue Reading Amicus Brief In Supreme Court Case On Court Of Federal Claims Jurisdiction

    Worth listening: this LexisNexis podcast. Details:

    On this edition, Michael Allan Wolf, Richard E. Nelson Chair in Local Government Law at the Levin College of Law, University of Florida, discusses what real estate practitioners can learn from the U.S. Supreme Court’s decision in Stop the Beach Renourishment, Inc. v. Florida DEP and what it suggests about policies affecting the Oil Spill in the Gulf of Mexico. Topics include avulsion, accretion, and the possibility of “judicial taking.”

    Continue Reading Podcast On The Judicial Takings Case (Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envt’l Protection)