Eminent Domain | Condemnation

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As the title should inform you, Mountain Valley Pipeline, LLC v. 0.32 Acres of Land, No. 23-1935 (Jan. 27, 2025) is a federal taking. Here, a taking where a private pipeline condemnor is exercising the delegated federal power of eminent domain under the Natural Gas Act.

The issue we’re focusing on in this case is the district court’s exclusion of the property owner’s testimony about the value of her land. As you courtroom lawyers are keenly aware, a judge’s decision to allow or exclude evidence is, generally speaking, a discretionary matter and subject to the very deferential “abuse of discretion” standard of review on appeal.

But here, the Fourth Circuit concluded that the district court abused its discretion. Slip op. at 8. We won’t be going into great detail in this post, but instead urge you to review the opinion starting at page 8. “The threshold for admissibility of…

Continue Reading CA4: Owner With Personal Knowledge Can Testify About Value Of Her Land

What does a property owner do if she believes that the government’s eminent domain lawsuit is abusive? Is the remedy limited to the four corners of the eminent action (i.e., a counterclaim, third-party claim, etc.), or may a landowner institute a separate action which includes a tort claim for abuse of process? 

In Indiana Land Trust #3083 v. Hammond Redevelopment Comm’n, No. 24A-PL-1284 (Jan. 31, 2025), the Indiana Court of Appeals held that because the remedies in an eminent domain case and an abuse of process case are different, the owner may press claims that the “taking was for ‘discriminatory private purposes, for private gain, motivated by spite and/or that it is against public purposes[.]'” in a separate abuse of process lawsuit. Slip op. at 5. 

Here’s the order of events:

  • Redevelopment agency instituted an eminent domain case in state court to take owner’s property as part of a

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Continue Reading Ind App: Eminent Domain Abuse Is [Also] Abuse Of Process

A and B entered into a purchase and sale agreement for A to sell a commercial property (let’s call it “Blackacre”) to B, a commercial real estate developer.

A knew that the city planned to redevelop the area for a roundabout, “that would require the City to take over a portion of the property by eminent domain.” A did not disclose either the planned redevelopment or the likelihood of taking of Blackacre to B. Some time before the deal closed, B “learned of the redevelopment for the first time,” and soon issued notice of termination and requested return of the deposit under the terms of the sale agreement.

A refused and when mediation failed, B sued for breach of contract (the sale agreement provided that in the event of a taking by eminent domain, the deposit would be refunded). Count II alleged fraud for A’s failure to disclose knowledge of…

Continue Reading Maine: Seller Of Land Has No Duty To Disclose Govt Plans To Condemn

Check out In re Condemnation of Property in Rem (Appeal of Clemens), No. 1101CD23 (Feb. 4, 2025), one from the Pennsylvania Commonwealth Court.

The Town exercised eminent domain to take property, stating it was taking the land for public recreational purposes. That can’t be the Town’s true purpose, argued the landowner, because the Town doesn’t have a carefully developed recreation plan.” And you need a plan. Moreover, argued the owner, the Town has no authority to take property for open space.

First, the court held that “[n]othing in the Township Code or the Eminent Domain Code requires a ‘carefully developed plan’ for recreational purpose before a declaration of taking can be filed.” Slip op. at 18. What about that Pennsylvania case that seems to say you need a plan? Distinguishable. Having a plan helps to show the taking’s real purpose — but the absence of a plan doesn’t…

Continue Reading No Plan? No Problem! Condemnation Statute Does Not Require A “Carefully Developed Plan”

Property_rights_and_the_roberts_court_Agenda_

Register now and plan on joining us on Thursday, February 27, 2025 at the U.C. Berkeley Law School for a one-day conference: “Property Rights and the Roberts Court: 2005-2025.”

Here’s the agenda. Here’s a description of the program:

For much of the past century, property rights were relegated to second-class status compared to the rest of the Bill of Rights. However, under the Supreme Court leadership of Chief Justice John Roberts, this trend has begun to shift.

In recognition of the 20th anniversary of the Chief Justice’s elevation to the Supreme Court, Pacific Legal Foundation is partnering with Berkeley Law’s Public Law and Policy Program to host a day-long conference exploring the major property rights developments and future of property rights law in the Roberts Court.

We’ll hear from two different panels of renowned legal scholars and accomplished litigators, as well as a keynote lunch discussion between…

Continue Reading Join Us: “Property Rights and The Roberts Court: 2005-2025” (Feb. 27, 2025, UC Berkeley Law School)

Screenshot 2025-01-18 at 14-58-03 No. SCWC-19-0000776 January 14 2025 10 30 a.m. Maunalua Bay v. State of Hawaiʻi - YouTube

Here’s the latest in a case we’ve been following for a long time.

As we previously noted, the Hawaii court of appeals affirmed a trial verdict that the just compensation owed to littoral property owners for the State’s regulatory taking of small portions of accreted beach is zero.

Last week, the Hawaii Supreme Court heard oral arguments. Here’s the video (sorry, can’t embed it here). Worth watching, if only because questions of just compensation and how it is calculated rarely are presented to this court (which is a frequent flyer in regulatory takings cases).

Here’s a description of the case and issues from the Hawaii Judiciary:

Petitioners Maunalua Bay Beach Ohana 28, Maunalua Bay Beach Ohana 29, and Maunalua Bay Beach Ohana 38 brought an inverse condemnation action against the State of Hawai‘i in 2005. At that time, they argued that the State effected a taking of accreted lands via Act 73 of 2005. In 2009, the Intermediate Court of Appeals (ICA) held that Act 73 “effectuated a permanent taking of littoral owners’ ownership rights to existing accretions to the owners’ oceanfront properties that had not been registered or recorded or made the subject of a then-pending quiet-title lawsuit or petition to register the accretions.” Maunalua Bay Beach Ohana 28 v. State, 122 Hawai‘i 34, 57, 222 P.3d 441, 464 (Ct. App. 2009).

On remand from the ICA, Petitioners sought just compensation for the alleged temporary taking of their accreted lands between 2005 and 2012. At trial, the circuit court concluded that $0 was just compensation for the alleged temporary taking of the accreted land and no nominal damages should be awarded to the petitioners. It also determined that the petitioners were not entitled to attorney’s fees.

The ICA affirmed the circuit court’s decision. With regard to attorney’s fees, the ICA held that the petitioners’ “claim for attorneys fees against the State for obtaining declaratory relief is barred by sovereign immunity.” The ICA further held that the Ohanas were not entitled to attorney’s fees under the private attorney general doctrine.

In their application for certiorari, the petitioners argue that the ICA erred in affirming the circuit court’s award of $0 in just compensation with no nominal or severance damages. Petitioners also contend that the ICA erred by concluding that sovereign immunity bars an award of attorney’s fees, and that they would not be entitled to fees under private attorney general doctrine. The State contends that the ICA did not err in affirming the circuit court’s award of $0 in just compensation or declining to award nominal damages to petitioners. It also argues that the ICA correctly held that sovereign immunity bars petitioners’ claim for attorney’s fees, and that even if it did not, petitioners would not be entitled to attorney’s fees under the private attorney general doctrine.

We watched live, and have a couple of thoughts:

  • Justice McKenna’s questions indicate she recalls that in an earlier regulatory takings case, the court concluded that even “speculation value” was enough to place a regulatory takings claim outside a Lucas wipeout analysis, an indicator that in this court’s view, property always has value, even if it has no use. Is that enough to say the owners here were entitled to, at the very least, nominal just compensation?
  • Does obtaining a decision holding the State to its constitutional obligation (after which the State repeals the unconstitutional statute) qualify the plaintiff for fee recovery from the State under the private attorney general doctrine, even where the adjudicated compensation is zero? We think so, because suing to keep the State in line when it has acted beyond its authority is exactly the kind of thing that the Attorney General should do (but didn’t here, because it has been too busy defending the State’s action). What about the advocate for the State who argued that there was no constitutional wrong here, because of the zero compensation verdict (the notion that the Takings Clause does not prohibit takings, only uncompensated takings)? The fact that the State withdrew the offending statute after the plaintiffs won the takings claim seems to contradict that argument because at the heart of it, the court ruled that the State should have used its eminent domain power to take future accreted land, and not the police power.

Stay tuned. We’ll continue to follow along and will post the court’s opinion when issued.

Continue Reading Hawaii Supreme Court Arguments: Is Just Compensation For Even A Small Slice Of A Primo Hawaii Beach Zero?

Screenshot 2025-01-12 at 09-35-14 Taking Old Ladies’ Homes A Comparative Exploration of Eminent Domain in

Check this out, a just-published unsigned student piece: Note, “Taking Old Ladies’ Homes: A Comparative Exploration of Eminent Domain in Islamic Law,” 138 Harv. L. Rev. 841 (2025).

Not that we have any background to be able to evaluate the author’s assertions, but at the very least, the piece is very interesting (you learn stuff!), and does reach the conclusion that forced acquisitions are not absolutely necessary to “develop[] advanced built environments and economic systems[.]” See id. at 862 (“It is not enough to assume that any society, or indeed any modern society, requires a particular form of eminent domain or the eminent domain power itself.”).

Here’s a summary.

This Note is therefore likely the first exploration of premodern Islamic discourses and practices of “eminent domain.” It will argue three things about forced appropriation of property for public purposes in premodern Islamic law: First, that unlike in Anglo-American…

Continue Reading New Article (Note): “Taking Old Ladies’ Homes: A Comparative Exploration of Eminent Domain in Islamic Law,” 138 Harv. L. Rev. 841 (2025)

With our tongues firmly planted in cheeks, the Planning Chairs for the upcoming 42d edition of this popular and venerable Conference bring you this “breaking news” report from San Diego!

As you know, in addition to being the best nationally-focused conference on the subjects that we love and a venue that is nearly certain to have some of the warmest winter weather in the continental United States, and we went on-location from some of the local highlights: the beaches, Torrey Pines, the Zoo, Balboa Park, the Gaslamp Quarter, and Coronado to name but a few.

More about the Conference here, including registration information.

Here are some of the highlights:

  • Property Rights at the Supreme Court: DeVillier and Sheetz and What’s Next
  • Slow Take: Possession, Rent, Relocation, and Offset
  • The Jury’s View: How Jurors See Your Case
  • From Penn Coal to Penn Central: How to

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Continue Reading Breaking News: Come Join Us For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference, San Diego, Jan 30-Feb 1

Sandefur

We’re starting off the new year with some eminent domain goodness. Tim Sandefur has published “Eminent Domain in the Constitutions of Arizona, Washington, and Other States,” 18 N.Y.U. J.L. & Liberty 167 (2024).

There’s a lot in the piece that will keep you reading, but what we found particularly insightful was how public use/purpose limitations “should operate in practice.” In our opinion, it’s fairly easy to say that the Fifth Amendment (and state constitutions) operate as a robust check on the sovereign power to take property for public use, but a lot more difficult to apply that broad notion to particular circumstances in a way that is both uniform and predictable. Right now, we seem to be operating on a know-it-when-I-see-it basis, but that doesn’t get us to a general rule. This piece goes a long way to getting us to a general rule.

Highly recommended.

Here’s the Abstract:

The nineteenth century was an extraordinarily prolific age of constitution-making. One of the greatest concerns of constitution-makers during this period—particularly in the western states—was the protection of private property against threats such as the use of eminent domain and the damage to property resulting from public works projects. This Article takes the eminent domain provisions of the Arizona and Washington constitutions as a point of departure to examine the innovative ways in which constitution-makers sought to limit government’s power to deprive people of their property. These constitutions—which until the admission of Alaska and Hawaii were the most up-to-date constitutions in America—contain four such innovations: (1) an explicit ban on takings for “private use,” reinforced by prohibitions on judicial deference regarding the definition of “public use”; (2) a compensation requirement for the “damaging” of property; (3) a requirement that payment precede a taking, and (4) a ban on deducting from just compensation awards the amount of purported “benefit” resulting from a taking. The Article traces the origins of these four protections, with reflections on how they should operate in practice.

Check it out

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Continue Reading New Article: Timothy Sandefur, “Eminent Domain in the Constitutions of Arizona, Washington, and Other States,” 18 N.Y.U. J.L. & Liberty 167 (2024)

A short one today, but worth reading because the Kentucky Supreme Court’s opinion in Kentucky Transportation Cabinet v. Atkins, No.2023-SC-0173 (Dec. 19, 2024) highlights an important point: when offering evidence of the compensation owed for the taking of income-producing property–and “[d]etermining the value of condemned real property is not a science”– it isn’t “speculative” to consider what a hypothetical purchaser in a market free of project influence would pay for the anticipated income stream.

If that conclusion seems kind of obvious to you, it wasn’t to the Kentucky Transportation Cabinet, which asserted the trial court abused its discretion by allowing the owner’s appraiser to testify that the Cabinet’s taking for a highway project of the fee simple interest of land containing subsurface coal obligated it to pay compensation based on the potential income from coal royalty payments for the coal.

The Supreme Court disagreed, concluding that the trial court…

Continue Reading Kentucky: There’s More Than One Way To Prove Just Comp, Esp For Income-Producing Property