2019

Mansfield flyer 3-13-2019

If you are in the Williamsburg, Virginia area next week Wednesday, March 13, 2019, please hold the lunch hour (12:50-1:50pm, Room L127) on your calendar to come join us for a session with Howard Mansfield, author of the recently-published book “The Habit of Turning the World Upside Down – Our Belief in Property and the Cost of That Belief.”

In November, we chatted with Mr. Mansfield, and this semester are basing a seminar on property rights at the William and Mary Law School on the book. Well worth reading. Here’s the printable flyer. 

His book is about property, property rights, and what he has discovered about how these ideas are processed by the American psyche. He will be speaking about how property fits with the culture—the competing narratives attached to the notion of ownership—and the often-contradictory way in which we view the idea of property and…

Continue Reading Upcoming 3/13/2019 Book Talk: Turning the World Upside Down: Property Rights, Pipelines, and Emergencies – A Conversation With Howard Mansfield

Thank you to our colleague, economist William Wade, for sending along this piece, reacting to a recent decision by the Massachusetts Appeals Court.

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Financial inconsistency bedevils takings decisions

by William W. Wade, Ph.D.

This blog recently reported on a Massachusetts Appellate Court takings case ruling (Smyth v. Conservation Comm’n of Falmouth, No. 17-P-1189 (Feb. 19, 2019)), that reversed a judgment for the plaintiff, in part, based on an erroneous economic impact evaluation under the famous Penn Central test.

Plaintiff inherited a parcel from her parents seemingly purchased in 1975 for $49,000. Plaintiff’s appraiser valued the land parcel at $700,000 with the intended development and $60,000 in its current status as an unbuildable lot. The trial court awarded damages of $640,000.

While other issues were at issue on appeal, the court ruled on the economic impact prong of Penn Central that the diminution in value, $700,000 to $60,000…

Continue Reading Guest Post: Financial Inconsistency Bedevils Takings Decisions

Here’s the motion and proposed amicus brief we filed earlier this week, in a case we’ve been following about natural gas pipelines, eminent domain, and immediate possession.

As we noted here, a panel of the U.S. Court of Appeals for the Fourth Circuit recently concluded that a private condemnor under the Natural Gas Act could obtain immediate possession of property it is in the process of condemning, even though the NGA does not delegate the quick take power. All three judges concluded that this case is “on all fours” with the Fourth Circuit’s earlier decision in East Tennessee Nat. Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004), which held that even though Congress did not delegate the quick take power in the NGA, a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure could achieve the same result, and thus there was…

Continue Reading New Amicus Brief: Private Natural Gas Act Condemnors Can’t Use Rule 65 Injunctions To Short-Circuit The Straight Takings Process

Kansas colleague Chris Burger has published an article in the Kansas Bar Journal with the intriguing title, “Sanguine Doves in the Hands of the State or How the Power of Eminent Domain has Few Practical Restraints.” We dare you to resist downloading it and reading.

Thanks to Chris for allowing us to repost it (since most of us are not members of the Kansas Bar). It’s a short article and won’t take too much of your time, but there’s some valuable information there, even if you are not barred in Kansas. We especially appreciated the section on “drafting gamesmanship” and the quotes from the Kansas Supreme Court Justices on pages 31-32, this one in particular:

Left unchecked by flood walls erected either by the people’s representatives or by the people’s constitution, the power of the state will flow like an encroaching ocean into and through every available chink…

Continue Reading New Article: Sanguine Doves in the Hands of the State; or How the Power of Eminent Domain has Few Practical Restraints

Later today (starting at 1pm ET), our colleague Edward Thomas is chairing an ABA-produced webinar on “Low Income Populations: Underrepresented Socially, Overrepresented as Victims of Natural Disasters: Using the Law to Solve a Serious Problem.”

As in other areas of life, when natural disasters strike, it is often the owners of modest means who are the hardest hit. Floods, wildfires, sea level rise, you name it. And Ed has been there: he’s a former FEMA guy, and currently the President of the Natural Hazard Mitigation Association who understands that property rights have to be respected in these situations. 

Find out more information about the program and register here. Continue Reading Webinar Today – Low Income Populations: Underrepresented Socially, Overrepresented as Victims of Natural Disasters

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Rather than sum up the issue and the Massachusetts Appeals Court’s** conclusion in Smyth v. Conservation Comm’n of Falmouth, No. 17-P-1189 (Feb. 19, 2019), here’s the first part of the opinion:

GREEN, C.J. A land owner brought this action in the Superior Court, claiming that local land use regulation effected a taking of her property, requiring just compensation under the Fifth Amendment to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights. This appeal presents a question of first impression in Massachusetts: whether the land owner is entitled to have her regulatory taking claim decided by a jury. We conclude that the jury right does not attach to such a claim, and that the judge erred in denying the defendants’ motion to submit only the question of damages to a jury. We further conclude that the evidence presented at the trial did not, as matter…

Continue Reading Mass App: Regulatory Takings Claims Don’t Get A Jury Trial

If you can make sense of the Montana Supreme Court’s analysis in Letica Land Co. v. Anaconda-Deer Lodge County, No. DA 18-0249 (Feb. 5, 2019), we are all ears, because we sure cannot.

The court concluded that the county’s actions in furtherance of its claim to own a road located on Letica’s property — including removing a dirt berm and encouraging the public to use the road — could not be a taking, only a tort. 

The county’s defense to the takings claim was “that a temporary physical invasion was done under claim of right and therefore did not amount to a taking of Letica’s private property.” Slip op. at 4-5.

The court agreed, relying on Langford v. United States, 101 U.S. 341 (1880) for the proposition that “if the government mistakenly asserts the right to use its own property, and the property in fact belongs to another…

Continue Reading Say What? Gov’t Occupying Property Under Claim Of Right Is Only A Tort, Not A Taking

The South Carolina Constitution, like the Fifth Amendment and just about every other state constitution, prohibits takings of “private property” without just compensation. See S.C. Const. art. I, § 13(A).

But does that govern the situation where the owner of the property allegedly taken by a city and the State DOT by creating sinkholes is a county? In other words, is property owned by a county “private” property? (We’ve been down this road before, as noted in this post.)

In Georgetown County v. Davis & Floyd, Inc., No. 5627 (Feb. 13, 2019), the South Carolina Court of Appeals answered no. There, the County asserted an inverse condemnation claim against the City of Georgetown and SCDOT, alleging that “while engaged in a joint water drainage project, [they] altered the water table, causing sinkholes to form and damaging public buildings and real property owned by the County.” Slip…

Continue Reading SC App: County-Owned Property Isn’t “Private Property,” So No Inverse Claim Against State DOT

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Here’s the latest in a case we’ve been following, involving what Colorado calls “bad faith” condemnations. 

In this order, the Colorado Supreme Court has declined to review the Court of Appeals’ conclusion that a taking ostensibly to preserve open space and a buffer zone between two municipalities, was an invalid exercise of the eminent domain power because the true reason for the taking was to prevent the condemnee-municipality from luring a big-box retailer, King Sooper, to its territory and away from the condemnor’s. 

So even though the case has ended with a whimper and not a bang, this does mean that the Court of Appeals’ hard look at the actual motives of the condemnor — and not merely its stated purpose — is the way to do things. The court examined the factual record, and not just the stated reasons for the taking, and tested whether the condemnor’s …

Continue Reading Colorado Supreme Court Denies Cert In “Improper Motive” Condemnation

SJEBKannouncement

Be sure to save the date on your calendar for the 16th Annual Brigham-Kanner Property Rights Conference, at the William and Mary Law School in Williamsburg, Virginia.

This year’s B-K Prize will be awarded to Professor Steven J. Eagle. Professor Eagle is a familiar presence to the property bar and the academy, and this award is well-earned. His treatise, Regulatory Takings, is a monumental work, and a book that needs to be on every property lawyer’s and scholar’s shelf. As the media release notes:

Michael M. Berger, an attorney at Manatt, Phelps & Phillips and the 2014 Brigham-Kanner Prize recipient, considers Eagle one of the finest property scholars of his generation.

“[Eagle] has devoted much of his life and his prodigious energy toward analyzing the constitutional nuances embedded in real estate law,” Berger said. “His deeply thought out analyses provide major contributions to the body of law examining and…

Continue Reading Mark Your Calendars: October 3-4, 2019 – Brigham-Kanner Property Rights Conference And Prize Award To Prof Steven Eagle