September 2016

Eminent Domain Las Vegas print brochure--final - Copy

Do you really need an excuse to visit Las Vegas in the interregnum between its brutally hot summers and the winter high season? Probably not.

But if so, here’s your opportunity. Plus, you can earn CLE credit.

CLE International is putting on “Eminent Domain 2016: Current and Emerging Issues for Litigators” at Caesar’s Palace, September 29-30, 2016.

The Planning Chairs for the program, our colleagues Darius Dynkowski, Autumn Waters, and Kermitt Waters, have assembled a great lineup of topics and speakers, including panels on highway projects, power lines, pipeline takings, and municipal takeovers of local utilities. As if to prove the “international” part of its name, the program will also include a session on “Injurious Affection and the Canadian Approach to Damages for Partial Takings” presented by our Toronto colleague Shane Rayman. We’ll kick off the conference, speaking about “Eminent Domain …

Continue Reading Eminent Domain Conference, Las Vegas (September 29-30, 2016)

Here’s a newly published article from University of Virginia lawprof Maureen Brady, “Property’s Ceiling: State Courts and the Expansion of Takings Clause Property” 102 U. Va. L. Rev. 1167 (2916). We think it is worth your time reading.

What particularly caught our eyes about the article was its focus on municipal “regrade” projects (such as Seattle’s famous “Denny Regrade” (see our recent post on that here), and how they influenced state courts’ development of constitutional property rights.  

Here’s the abstract:

The Federal Constitution and nearly all state constitutions include takings clauses providing that private property shall not be taken for public use without just compensation. To the extent that scholars have considered the role of state courts with regard to these takings clauses, they have focused around constitutional limits on judicial restrictions of what constitutes property. Little attention has been paid, however, to how…

Continue Reading New Article: “Property’s Ceiling: State Courts and the Expansion of Takings Clause Property”

A long title for today’s post, but there’s a lot that needs to be captured.

In Texas Dep’t of Transportation v. Hankins, No. 01-14-00299-CV (Aug. 31, 2016), the Texas Court of Appeals threw out a jury verdict in an inverse condemnation case, concluding (sua sponte) that the property owner plaintiff didn’t have standing. 

Hankins owned a building, and after he tore it down because it had been damaged, he discovered the cause was an underground drainage pipe which apparently had been installed by the Highway Department decades before Hankins purchase. The prior owner had conveyed and recorded an easement to the Department, even though it was unclear whether that owner also authorized installation of the pipe. 

Hankins brought an inverse condemnation lawsuit alleging a physical invasion taking because the pipe was not authorized, and alleged that until the demolition of the building, he had no idea the…

Continue Reading Tex App: Inverse Condemnation Plaintiff Didn’t Have Standing Because He Didn’t Own The Property At The Time Of The Government Action

On one hand, we don’t care for attorneys’ fee fights. They are satellite litigation, almost always after the merits have been resolved. They can get tedious (does anyone like going over years of timesheets and billing records, and haggling over whether a motion should have reasonably taken 1 hour or 5 hours?), many judges don’t really like fee requests (even where the law requires fee shifting), and some judges are not really tuned in to the real-world financial realities of funding litigation and believe their job is to cut down fee requests to whatever level the judge thinks is acceptable. It can be a remarkably capricious process. 

On the other hand, however, these things are obviously vitally important, and really worth the tedium. In many jurisdictions, (Hawaii, for example), property owners in eminent domain or inverse cases generally cannot recover attorneys’ fees and costs, either as part of just compensation…

Continue Reading New Cert Petition: Does The Court Have To Say Why (And How) It Cuts Down A Property Owner’s Attorney Fee Recovery?

We’re in the final stages of getting the agenda ready for the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation Conference, to be held in San Diego, California, on January 26-28, 2017. Look for the official announcement of the program soon.

In the meantime, we thought this preview of one of the topics was particularly appropriate to be noted today, the 50th anniversary of the broadcast of the first episode of the TV show Star Trek.

“Everything About Eminent Domain I Need To Know I Learned From Star Trek: Do the Needs of the Many Outweigh the Needs of the Few?“

Yes, we’re going there. Maybe not “where no man has gone before,” and we can’t promise that the remaining members of the Starship Enterprise crew will be speaking at our Conference, but we do promise that this presentation will translate the pop culture phenomenon that…

Continue Reading 2017 ALI-CLE Eminent Domain Conference Preview: “Everything About Eminent Domain I Need To Know, I Learned From Star Trek”

Check this out, a follow-up to our earlier post about the Texas Supreme Court opinion in which the property owner pushed back against a taking of a part of his ranch by a water district by forming his own water district, thus creating a situation where one governmental entity was trying to take another governmental entity’s property by eminent domain. And you know what that means: a “superior public use” issue. Created from whole cloth. As we wrote, “bravo, Sir!”

The Texas Supreme Court held that in these cases, the trial court needs to first resolve the immunity issue, before it gets to valuation. An entirely sensible approach, in our outside-looking-in perspective. 

Read more about that case and the property owner in this article from D Magazine, the city mag of (you guessed it) Dallas-Fort Worth: “A Gentleman Rancher’s Guide to Fighting Tarrant Regional Water District.” Like…

Continue Reading Southern Fried Takings: “A Gentleman Rancher’s Guide to Fighting Tarrant Regional Water District”

Some states (mostly in the Midwest, to our knowledge) don’t really recognize inverse condemnation” claims, at least as we in other jurisdictions use that term. Instead of recognizing a direct cause of action for compensation and damages when government has taken property physically or by regulation without first instituting an eminent domain case, these jurisdictions require a property owner to sue in mandamus, to compel the government to formally condemn the property and pay. Minnesota is one of those jurisdictions.

Property owners better follow that mandamus process strictly, at least according to the Eighth Circuit in American Family Ins. v. City of Minneapolis, No. 15-3216 (Sep. 6, 2016). Wait, you say, what’s this — an inverse condemnation/takings case in federal court … how can that be?

The case — a claim by insurance companies on behalf of their insureds after the city’s water main broke and flooded a condo —…

Continue Reading Eighth Circuit: Mandamus By Any Other Name … Still Mandamus

IMG_20160911_163316

We’re big fans of the University of Hawaii Law Review. Not just because it’s the flagship publication of our alma mater, but mostly because it publishes some worthy and useful articles from time to time (including ours). 

But it’s always bothered us that the subscription service was really Old School. As in to get a subscription, you needed to fill out a paper form and mail it in with a check to their offices. Some of us subscribed, but some of us let it slip. 

Under the leadership of co-Editor-in-Chief Ross Uehara-Tilton (who, coincidentally was one of our firm’s Summer Associates), the UHLR has entered the modern era, and it is now really easy to sign up for a subscription — on-line and with your credit card. Go here, and a few clicks later, you’re done. And what a deal — a mere $35 gets you both…

Continue Reading University of Hawaii Law Review – Now (Finally) On-Line