2015

In West Virginia, mineral rights can be owned separately from the surface estate. Not that unusual; something we learned in the first year of law school, in Property I. You might assume that condemning agencies’ lawyers in West Virginia and similar jurisdictions understand this, and counsel their clients accordingly.

Or maybe not, once you read the opinion of the West Virginia Supreme Court of Appeals in West Virginia Dep’t of Transportation v. Newton, No. 14-0428 (May 13, 2015). 

Mr. Butler owned the surface, but Ms. Newton owned the mineral rights. The DOT was building a highway, and asked Mr. Butler whether it could enter his land to test it. He said yes. The DOT condemned and paid him for the land it needed for its highway project. But it also mined and took limestone for the road from the land. Did the DOT assume that Mr. Butler also…

Continue Reading West Virginia: DOT Should Not Have Mined Privately Owned Limestone Without Owner’s Permission

A short one from the Kansas Supreme Court. In Neighbor v. Westar Energy, Inc., No. 111972 (May, 8, 2015), the court concluded that Kansas’ “savings statute,” which allows a party in certain circumstances to refile a lawsuit that had been voluntarily dismissed without prejudice within six months, applied to eminent domain cases.  

The details involve peculiarities of Kansas practice and eminent domain law, but the takeaway is that the court concluded that despite the somewhat different procedures applicable to eminent domain cases (the valuation is initially determined by a panel of three appraisers, and if a party is dissatisfied with their conclusion, it may “appeal” to the district court), the eminent domain statute also provides that the appeal is “a new civil action” that “shall be tried as any other civil action.” Thus, Kansas’ “savings statute” applied, and allowed Neighbor to refile his appeal of the panel valuation. The…

Continue Reading Kansas: Eminent Domain Litigation Is A “Civil Action” Subject To Same Rules As Other Cases

Our American Bar Association colleague Ed Thomas (no relation, although we often joke that we’re probably cousins), the President of the Natural Hazard Mitigation Association and a guy who acknowledges that the need to protect against natural disasters must take property rights into account, has compiled some thoughts about the Court of Federal Claims’ recent opinion in a case holding the federal government liable for the taking of property during Hurricane Katrina.

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Major Court Decision with implications for Climate Adaptation, Hazard Mitigation and a Safer and More Just Future.

by Edward A. Thomas Esq., 
President, Natural Hazard Mitigation Association

May 7, 2015

On May 1, 2015, the U.S. Court of Federal Claims issued an enormously important decision concerning flood damage caused by Hurricane Katrina and subsequent hurricanes. That case, Saint Bernard Parish Government v. United States, No. 05-1119L (May 1. 2015), found the United States government liable for…

Continue Reading Guest Post: Katrina Flood Takings Decision Emphasizes Science

Even though it is a trial court decision, the opinion in Township of Readington v. Solberg Aviation Co., No. HNT-L-486-06 (May 4, 2015), is well worth reading, because we think the judge gets the process for how courts evaluate claims of pretext correct. 

We posted about this case a few years ago, after the Appellate Division remanded the case with instructions to the trial court to take an objective view of the Township’s claim that the taking of Solberg’s airport was to preserve open space, and not, as Solberg claimed, to thwart Solberg’s plans to expand its facilities and to allow the Township to take control of the enterprise.

The trial court did so, and after a long bench trial, it concluded:

In fine, an objective scrutiny of the collective testimony of the elected officials involved in the architecture and implementation of the eminent domain ordinance concerning the SHA…

Continue Reading NJ Trial Court Finds Open Space Taking Pretextual: “objective scrutiny of the…testimony of the elected officials…reveals a studied attempt to obscure the true purpose of the condemnors”

A long opinion (73 pages) from the U.S. Court of Federal Claims in St. Bernard Parish Gov’t v. United States, No. 05-1119L (May 1. 2015), and it is worth reading in its entirety (there are even photos and maps embedded). But here’s the short version:

In Arkansas Game & Fish, the United States Supreme Court held that “[f]looding cases, like other takings cases, should be assessed with reference to the ‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.” 133 S. Ct. at 521; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 427 (1982) (“[N]o ‘set formula’ exists to determine, in all cases, whether compensation is constitutionally due for a [G]overnment restriction on property. Ordinarily, the Court must engage in ‘essentially ad hoc, factual inquiries.’” (quoting Penn Central, 438 U.S. at 124); Ridge Line, 346 F.3d at 1352 (“A…

Continue Reading CFC: Katrina Flooding Is A Taking

Remember Dunn v. City of Milwaukie? That’s the case in which the Oregon Supreme Court reversed an inverse condemnation judgment in favor of a homeowner who had sewage back up into her house after the city “hydrocleaned” the sewer system, because she had not shown that the government had “acquisitory intent.”

The court, however, felt okay about depriving Ms. Dunn of an inverse condemnation remedy for her house being tainted with municipal crap, because sovereign immunity had been waived, and she could still sue the city in tort.

Turns out, she was s**t out of luck there, also. In Dunn v. City of Milwaukie, No. A139386A (Apr. 22, 2015), the Oregon Court of Appeals concluded that she missed Oregon’s 180-day statute of limitations/repose to bring these type of  claims. She knew, they held, but she waited too long. As we wrote in our report on the earlier decision…

Continue Reading Sue Early, Sue Often If Your Home Flooded With Municipal Waste In Oregon

If you have plans to be in Wisconsin or environs in June, the Wisconsin chapter of the Appraisal Institute is putting on its 12th annual Condemnation Appraisal Symposium at the Marquette Law School on Wednesday, June 3, 2015.

One of the featured speakers is Mike Berger on “Current National Eminent Domain Issues,” and there will also be presentations about power to take challenges, and thorny appraisal issues, among others.

Here’s the description from the event flyer:

The Condemnation Appraisal Symposium is the go-to event of the year for those real estate and legal professionals who are currently engaged, or who wish to be more involved, in eminent domain matters. This high-level program provides the latest information and open debate on condemnation case law, appraisal techniques and other timely topics presented by attorneys, appraisers, educators, and government officials, while again offering valuable networking opportunities with those practitioners active in this specialty…

Continue Reading Upcoming Wisconsin Appraisal And Eminent Domain Law Conference

We were all ready to write up the California Court of Appeal’s latest opinion about our favorite subtopic — the recovery of attorneys’ fees in eminent domain actions — when our colleagues at the California Eminent Domain Report beat us to it (“Court Clarifies Rules for Recovery of Attorneys’ Fees in Eminent Domain Actions“).

The case is about fee shifting when the condemnor’s conduct is judged based on its final offer made 20 days before trial. But what about if there are multiple offers, and the trial date moves?

To find out what the court thought about this, read the opinion (People ex rel. California Dep’t of Transportation v. Hansen’s Truck Stop, Inc., No. A133252 (Apr. 24, 2015)), read the post, and enjoy the remainder of your day. 

People ex rel. California Dep’t of Transportation v. Hansen’s Truck Stop, Inc. No. A133252 (Cal….

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Continue Reading Cal App On Attorneys’ Fees In Eminent Domain

While we put the finishing touches on our full write-up of last week’s oral arguments in Horne v. U.S.D.A., No. 14-275 (we posted our initial thoughts after attending the Court’s session here), here are other summaries of the arguments:

  • “Supreme Court justices appear ready to rule against California raisin board” from the Los Angeles Times, isn’t a purely objective view of the case, and the “meta-message” (the Hornes are ingrates for challenging a program that benefits them) comes through loud and clear. The report also misunderstands the relief which the Hornes seek: “While it appeared clear a majority will side with Horne, it is not clear what this means for other farm products, or even what compensation he is due.” We hope this misconception doesn’t carry over to the Justices, since the Hornes are not seeking just compensation in this action, and only argue that

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Continue Reading Horne Oral Argument Round-Up

We’re at a conference with the ABA Section of State and Local Government Law in Philadelphia (talking about eminent domain, public use, just comp, and Horne, inter alia), so we haven’t had the time to read this opinion — issued just a few minutes ago — in detail. But it’s a case we’ve been following keenly, and not just because we filed an amici brief in the case in support of the property owner.

The Texas Supreme Court has issued an opinion in State of Texas v. Clear Channel Outdoor, Inc., No. 13-0053 (Apr. 24, 2015), a case which involves the issue of whether the state DOT took a billboard when it ordered it removed during a road widening project, and if so, how it should be valued. Here’s the bottom line:

Consistent with that case, we conclude that a billboard may be a fixture to be valued…

Continue Reading Texas Supreme Court Clarifies Just Compensation For Billboards