2013

Here’s one of those owner-puts-up-a-fence-that-is-actually-on-his-neighbor’s-property situations, this time with a very Hollywood twist.

The owner, you see, was Larry Hagman, of Dallas and I Dream of Jeannie fame. Seems the fence between his Ojai, California property and that of his neighbors, a religous group, was .44 acres into their land, and Hagman claimed it by adverse possession. In Hagman’s quiet title action, the trial court granted him summary judgment.

In Hagman v. Meher Mount Corp., No. B239014 (Apr. 3, 2013), the Court of Appeal affirmed. The court held that Meher Mount’s property is not immune from adverse possession by virtue of it being owned by a “public benefit corporation,” because that is not the same as a “public entity.” The latter are “vested with some degree of sovereignty.” Slip op. at 4. Even though public benefit corporations like Meher Mount require government approval, “[t]hey are not…

Continue Reading J.R. (Or Major Nelson) Adversely Possesses Neighbor’s Land

Here’s what’s on our reading list today:

  • Here’s the latest chapter in the saga of one Fane Lozman, whose titling at windmills got some Supreme Court love recently when the Court held that his floating home was not a “vessel” under admiralty law, and a Florida city was wrong to seize it. My Damon Key colleague Mark Murakami reports on the 11th Circuit’s recent ruling in Lozman’s related federalcivil rights case. Houseboat Redux – Eleventh Circuit Reinstates Lawsuit (via Hawaiioceanlaw.com). 

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Continue Reading Wednesday Round-Up: Houseboat Redux, Backtracking Post-Kelo, Arkansas Game Remand, Big Gulps

Following on the filing of the parties’ briefs on the remand in Arkansas Game from the Supreme Court, is this amici brief filed last week by the the Pacific Legal Foundation, the Cato Institute, the National Federation of Independent Business Small Business Legal Center, and the National Association of Home Builders in support of the Game and Fish Commission.

The brief argues that the Supreme Court “did not modify or overturn the well-settled test for adjudicating physical takings claims,” and refutes the government’s argument that the Court implicitly overruled all past takings cases in favor of a multi-factor test applicable whether or not the taking is the result of a physical invasion or a regulation.Br. at 4-5. The brief also argues that the Federal Circuit does not need to adopt a “new test” to take into account the “factors” the Court’s opinion set out because “the well-established test for adjudicating …

Continue Reading Amici Brief: Arkansas Game Did Not Overturn Well-Settled Test For Physical Takings

Here’s a quick one from the Indiana Court of Appeals, about when a party must object to an appraiser’s report, and the reaction to that objection by the condemnor.

In Clark County Bd of Aviation Commissioners v. Dreyer, No. 10A01-1206-PL-288 (Mar. 21, 2013), the property owner did not object to the report of three court-appointed appraisers valuing its property at $201,000 within the 21 days allowed under Indiana eminent domain procedures, but the condemor did not object, so the trial went forward. The jury awarded $865,000 as compensation, and the court awarded the owner $24,000 in attorney fees.

The condemnor appealed, arguing that the trial court should not have admitted evidence of the highest and best use of the property that the condemnor alleged was inconsistent with the property’s current use. The Court of Appeals rejected the argument and even though it noted that the property owner had not…

Continue Reading Indiana App: Timing Of Objection To Appraiser’s Report Is Not A “Real” Jurisdictional Problem

A most interesting case has been briefed and is awating argument in the Hawaii Intermediate Court of Appeals. But first, some background.

In Public Access Shoreline Hawaii v. Hawaii Planning Comm’n, 79 Haw. 25, 903 P.2d 1246 (1995), the Hawaii Supreme Court held “[o]ur examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawai’i.” Among those “western concepts” was the fee simple absolute under which an owner has the right to exclude the public. In PASH, the court concluded that the
legitimate and reasonable practice of customary and traditional rights” by native Hawaiians (small “n”)Continue Reading Is Pig Hunting A “Traditional And Customary” Native Hawaiian Practice?

This morning, the Supreme Court released the order with the results of last Friday’s conference, revealing the Court has declined to review Lepak v. City of Irving, No. 12-777 (petition for cert. filed Dec. 21, 2012). We’re covering this issue here because as some of you might recall,  we represent the plaintiffs in a case challenging the 2012 Hawaii Reapportionment Plan, and Lepak raised related issues.

The Equal Protection Clause of the Fourteenth Amendment requires that state and local reapportionment and redistricting be accomplished so that the resulting districts are of roughly equal “population,” but the Supreme Court has never defined exactly what it means by “population.” Is it like Congressional reapportionment which requires that all persons get counted, i.e., the census count? Can some lesser population be counted? This is another way of describing the question of whether Equal Protection guarantees each person’s right to vote…

Continue Reading Voting Equality vs. Representational Equality – Cert Denied In “One Person, One Vote” Case

As you know, the U.S. Supreme Court earlier reversed the Federal Circuit’s conclusion that government-induced flooding could not be a taking unless it was “permanent,” and remanded the case to the Federal Circuit for more.

Although the Federal Circuit indicated it would have preferred to avoid trying to deal with the issue (its order establishing a briefing schedule on remand invited the parties “to consider mediation of the issues remaining in the case following the Supreme Court’s remand”), it looks like that’s not what is happening, because the parties have filed their briefs. 

The briefs appy the multi-factor Penn Central-ish “factors and circumstances” set out by the Supreme Court: 

  • “[T]ime is indeed a factor in determining the existence vel non of a compensable taking” Was the flooding “temporary and unplanned” and a result of “exigent circumstances?”
  • “[T]he degree to which the invasion is

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Continue Reading Arkansas Game On Remand From SCOTUS – First Briefs

Today, on behalf of the Cato Institute and a coalition of Western-state public policy and research foundations, we filed this amicus brief in supporting the City of Tombstone‘s cert petition in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013).

In that case, in 2011 a forest fire in the Coronado National Forest and later monsoon rains damaged the city’s sources of municipal water. The city and the State of Arizona declared a State of Emergency, but the U.S. Forest Service limited repair efforts by requiring the city to apply for a special permit and placing limitations on its use of equipment. Because it alleged the loss of water from these sources limited its ability to repond to fires, Tombstone sought a preliminary injunction prohibiting the Service from impeding its repair efforts. The District Court denied the injunction, and the Ninth Circuit…

Continue Reading Amici Brief: The Tenth Amendment, The Property Clause, And The “Town Too Tough To Die”

Cle-logoThose of you on the east coast (or, who wouldn’t mind a visit to a very beautiful part of Virginia), mark your calendars: on April 25 and 26, 2013, CLE International is presenting the 7th Annual Virginia Eminent Domain Conference – Local, State, and National Trends at the Tides Inn in Irvington, Virginia.

My Owner’s Counsel of America colleague Joe Waldo, the Planning Chair for the conference, has kindly asked me to deliver the Keynote Presentation to speak about “Virginia’s Place in National Eminent Domain Trends.” The following day, I’ll also be presenting a one-hour session on “Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings” featuring the latest updates in those areas.

Joe and colleagues have assembled a talented and varied faculty, so please join us for two days worth of great CLE. Download the full brochure or the short version postcard, or, for complete…

Continue Reading 7th Annual Virginia Eminent Domain Conference (April 25-26, 2013)