May 2016

A quick one from the U.S. Court of Appeals for the Sixth Circuit, in a federal condemnation, United States ex rel TVA v. 1.73 Acres of Land, No. 15-5530 (May 5, 2016). 

The Tennessee Valley Authority condemned an easement on a strip of Mr. Thomas’ undeveloped land (zoned for agricultural/residential uses) for utility lines. The owner said he had plans to develop a hotel on the site to take advantage of the views from the nearby interstate highway. The case was heading to a jury trial on the issue of just compensation.

The district court, however, refused to let the jury consider the owner’s expert witness report. The expert was going to testify about the feasibility of the site for a hotel, and how power lines killed those plans. Lacking an expert witness, the owner testified at trial about the value of his land.At the close of the evidence…

Continue Reading 6th Cir: Going To War With The Army You Have Isn’t Good Enough To Get To The Jury


 Owlshead

Here’s a cert petition recently filed, which asks the U.S. Supreme Court to review the opinion of the Maine Supreme Judicial Court under a judicial takings theory.

The petitioners argue that the Maine court took their private property when it departed from its prior decisions and a statute and concluded that a road to their home was a public beach access road, and not their private driveway. 

Here are the Questions Presented:

1. Did the Maine Supreme Judicial Court effect a “judicial taking” in violation of the Fifth and Fourteenth Amendments to the United States Constitution when it upheld the Superior Court’s reliance upon extrinsic evidence of the intent of petitioner’s deceased predecessor in title, John McLoon, to determine that the dedication and acceptance of “Coopers Beach Road” as a public way included the Petitioner’s driveway despite the fact that the dedication petition itself failed to specifically describe the…

Continue Reading New Cert Petition: By Upholding Public Beach Road Access, Maine Supreme Court Judicially Took Our Driveway

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A noteworthy opinion from the Court of Federal Claims in Petro-Hunt LLC v. United States, No. 00-512L (Apr. 26, 2016), dismissing a claim for a judicial taking for lack of subject matter jurisdiction because the claim would require the CFC, an article I court, to review the actions of the Fifth Circuit, an article III court. The CFC concluded that in this situation, the Federal Circuit holds there’s no jurisdiction.   

The takings case came about after the Fifth Circuit held that the plaintiff did not own mineral leases in Louisiana because under federal common law, it did not acquire any rights by prescription. The plaintiff asserts in the CFC that this is a taking because the Fifth Circuit’s ruling altered its previously-established rights by changing the law. The court accepted that fact as true, but concluded that the CFC has no jurisdiction to tell the Fifth Circuit it…

Continue Reading CFC Tackles Judicial Takings: SCOTUS “Cracked Door Ajar,” But Federal Circuit Mostly Says No Jurisdiction

“Help us help you.”

That was the tenor of the questions from the Ninth Circuit panel (Judges Tashima, Tallman, and Hurwitz) sitting in Portland

The Deputy AG arguing for the State started

“You Honor, my opponent’s concession that Patel forecloses his argument about the nature of the facial challenge, resolves this case in its entirety.” 

It’s hard to join the Democratic Party of Hawaii?Continue Reading Voting Overwhelmingly For Democrats Isn’t Enough – We Want Your Hearts And Minds: 9th Cir Oral Arguments In Hawaii “Open Primary” Appeal

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Earlier today, we asked the Federal Circuit for its permission to file this amici brief urging the court to rehear its recent panel decision in Romanoff Equities, Inc. v. United States, No. 15-5034 (Fed. Cir. Mar. 10, 2016).

This is a rails-to-trails takings case in which the panel concluded that the words in the original easement grant “for railroad purposes and for such other purposes as the Railroad Company … may … desire to make” mean that the easement was a “general” easement which allowed the grantee to not only make railroad use of the easement, but literally any use it desired. Thus, when the railroad abandoned the line and the City of New York turned it into the Highline public park, the reversionary property owners were not entitled to compensation.    

Our brief argues that there’s no such animal as a “general” easement that allows the…

Continue Reading Amicus Brief: NYC’s Highline Park Is A Taking: A “General” Easement Allowing All Uses Isn’t Really An Easement At All

California Associate Justice Goodwin Liu — often mentioned on short lists of potential future nominees to the U.S. Supreme Court even after the Republican-led Senate stymied his nomination by President Obama to the Ninth Circuit — just saw his chances for a promotion go up today, if ever so slightly. No, we’re not talking about Donald Trump’s Indiana primary victory, even though that might play into it. Rather, we’re talking about an eminent domain case that was argued earlier this morning in the California Supreme Court.

Yes, you read that right: an eminent domain case might be instrumental in a future SCOTUS appointment. 

Live From San Francisco!

We weren’t able to be present in the San Francisco courtroom for today’s arguments in Property Reserve v. Superior Court. But for the first time, the court beamed arguments live on the web for all the world to see, so we…

Continue Reading Cal Supreme Court Post-Argument Analysis: Does The Entry Statute Provide The Same Protections As Eminent Domain?

The New Hampshire Supreme Court, in our view, got it wrong in Ashton v. City of Concord, No. 2015-0400 (Apr. 29, 2016). Really, really wrong.

Indeed, the New Hampshire court seems to have resurrected the California Supreme Court’s now-defunct rule from Agins v. City of Tiburon, 598 P.2d 25 (Cal. 1979), which held that there is no compensation remedy when the application of an ordinance denies an owner all beneficial use of property, only declaratory and equitable relief. See id. at 26 (“the need for preserving a degree of freedom in the land-use planning function, and the inhibiting financial force which inheres in the inverse condemnation remedy, persuade us that on balance mandamus or declaratory relief rather than inverse condemnation is the appropriate relief under the circumstances”). The Agins rule was held unconstitutional in First English Lutheran Church of Glendale v. County of Los Angeles, 482…

Continue Reading Does New Hampshire Think It’s California? Wrongful Denial Of Demolition Permit Cannot Be A Taking Because City Was Merely Applying The Statute

Dominionstorage

Is the forced acquisition of property by the government’s power of eminent domain a “purchase?” To the Virginia Supreme Court, the answer to that question is yes. Why, we’re not really sure, because the court doesn’t tell us why.

In City of Chesapeake v. Dominion SecurityPlus Self Storage, LLC, No. 150328 (Apr. 29, 2016), the court held that the use of the word in a subdivision plat in which the owner agreed that it “reserve for future purchase by the City” a part of its property with no compensation for any improvements on that land, meant that the owner also agreed to let the city condemn the land without paying for the improvements.  

This case involved a highway widening and elevation project in southern Virginia. The current owner of the property, which operates a self-storage facility on the parcel, purchased it from the prior owners who had subdivided it…

Continue Reading Virginia: Taking By Eminent Domain Is “Purchasing” Property. Why? Because We Said So.