Inverse condemnation

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A very short one (4 pages and 1 line) from the South Carolina Court of Appeals. And a good thing, too, because we’re on the road this week at the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference. See you there! 

In Burke v. S.C. Dep’t of Transportation, No. 5709 (Jan. 15, 2020), the court concluded that the judge, not the jury, calculates statutory prejudgment interest in inverse cases the same way it does it straight takings. Although the court acknowledged the “considerable tension” in past decisions about the issue, it concluded the issue was actually one of first impression. 

In the end the court relied on the notion that inverse and straight takings should not be subject to different rules — see slip op. at 3 (“there is no good reason to treat the two differently”) — and held that because the rule in straight…

Continue Reading SC App: Judge, Not Jury, Calculates Prejudgment Interest In Inverse Condemnation Cases

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Picture 1: how normal people see pie.

Picture 2: how you see pie if you’re coming to the
ALI-CLE Eminent Domain Conference. 

If you get the above, you probably are already set to join us next week for the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville. (If not, shame on you!).

And having just reviewed the latest registration list, I can report that we have an all-time record attendance.  But there’s still room for those of you still not committed. Register here. Don’t miss out. There will be pie. Continue Reading Record Attendance (But There’s Still Time For You Last-Minute Filers) At Nashville ALI-CLE Eminent Domain Conference

Is a property owner entitled to compensation if the DOT closes off an intersection by which drivers entered a fast-food restaurant, and now can only get to the restaurant by circuitous access? In other words, if a public project limits access, but does not cut it off entirely? And is the answer the same if the state had in 1961, taken with compensation an easement from the current owner’s predecessor, and the former owner had agreed the compensation was for “all the land taken and resulting damages?” 

That’s the issue the Ohio Supreme Court split 4-3 on in State ex rel. New Wen, Inc. v. Marchbanks, No. 2020-Ohio-63 (Jan. 15, 2020):

{¶ 6} ODOT’s work did not directly affect the entrance to the Wendy’s parking lot from C.R. 128. But as a practical matter, the changes require drivers to travel a longer distance to access the Wendy’s from S.R.

Continue Reading Ohio: DOT Partially Cutting Off Access Is A Taking – Prior Condemnation Did Not Take Right To Direct Access To Highway

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If there’s one downside to the law school experience from the teacher’s side of the lectern, it’s grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve.

In an upper-division course like “Eminent Domain and Property Rights Law,” where we’re dealing with some very high-level stuff and the quality of the students is uniformly excellent, that makes for some hard choices at this time of year. But we’ve wrapped up grading, and have submitted the official scores.

Although I cannot share with you all the papers themselves, I don’t think my students would mind if I give you a sampling of the topics and titles, just so you can see how the next generation of lawyers is thinking about this area of law: 

  • One Man’s Castle is Another Man’s Parking Lot: A Homeowner’s Theory of Eminent Domain
  • Native Title: Concept and

…
Continue Reading The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law’s Eminent Domain & Property Rights Course

One does not simply walk to nashville

You can also fly, drive, or bike to the upcoming 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. in Nashville. Limited space still available, so don’t delay further and register now. We’re on track to record attendance, so you don’t want to miss the best nationally-focused three-day program on our area of law.

Takings, Knick, compensation, appraisals … and a bit of fun thrown in. We have many new attendees, and many new speakers, too.  Continue Reading (Nearly) Last Chance To Join Us In Nashville For ALI-CLE’s Eminent Domain Conference

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It’s 2020, so out with the old, in with the new.

We like any opinion that starts off with “[t]he facts giving rise to this appeal are complicated but do not require a lengthy recitation.” Because that signals the opinion writer has done the hard work, because in order to explain complicated facts in a simpler way, the writer must have focused only on the critical facts (unlike a lot of brief and opinion writers). For that reason, we started off the New Year diving into the Supreme Court of Kansas’ opinion in GFTLenexa LLC v. City of Lenexa, No. 119278 (Dec. 6, 2019). It’s about the old problem of who is entitled to be compensated when property subject to multiple interests is taken. 

Here are the “complicated” facts: Oak Park owned land. It leased it to Centres. Centres, in turn, subleased it to Bridgestone for a tire shop. Later…

Continue Reading Kansas: Tenant With An Interest In Property Who Knew It Was Being Condemned Is Precluded From A Later Inverse Claim

Reading through the Alabama Supreme Court’s recitation of the facts in a case about inverse condemnation, City of Daphne v. Fannon, No. 1180109 (Dec. 6, 2019), you can’t help but be reminded of the convoluted chain of events in that old warhorse tort case, Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928) and the Cardozo-Andrews split on how far liability extends. You remember that one, where a guy running for a train was helped by railroad workers and a package fell from his hands and exploded, causing a scale on the other end of the platform to fall over onto Ms. Palsgraf injuring her. Tort liability turned on how foreseeable it was that helping someone onto a train would result in injury to a different party.

In Fannon, a similarly unusual chain of events results in private property being flooded. The City installed a pipe in …

Continue Reading Alabama Palsgraffing Of Takings: Only “Ascertainable” Damage Resulting From Public Works Are Compensable

Here’s the cert petition, filed today (by the same folks who brought you Knick v. Township of Scott, 139 S. Ct. 393 (1922)), which poses this straightforward question:

Whether the “self-executing” Just Compensation Clause abrogates a State’s Eleventh Amendment immunity, allowing a property owner to sue the State for a taking of property.

Now before you pooh-pooh the notion that you can sue a State for retrospective money damages in federal court despite the Eleventh Amendment, take a read. This is a topic which we’ve been furiously researching since Knick (more on that down the road a bit), and the issue is not as clearly on the side of “no you can’t” as you might think. 

As we noted in this short post a couple of months ago, the Fifth Circuit’s opinion in Bay Point Properties, Inc. v. Mississippi Trans. Comm’n, 937 F.3d 454 (5th Cir. 2019)…

Continue Reading New Cert Petition From The Knick Team: You Can Sue A State For A Taking In Federal Court

Here are some of the stories and analysis about yesterday’s ruling by the Court of Federal Claims holding the federal government liable for a taking for the flooding following Hurricane Harvey in the Houston area:

As we wrote yesterday, this one isn’t over by a long shot, so stay tuned.Continue Reading Harvey Flood Takings Round-Up