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As we hinted at a couple of weeks ago, we have some good — nay, great — news: the Eminent Domain Podcast, retired earlier this year by its originator Clint Schumacher, is back with a new host and a slightly new title: “Come and Take It: The Eminent Domain Podcast.”

Bobby Debelak has stepped into the host’s chair. As you might be able to tell from the new title, Bobby is also a Texas lawyer.

Here’s the first episode, where Client figuratively hands the baton to Bobby. If you haven’t already subscribed to the feed, now’s the time so you don’t miss an episode. Available on all pod feeds, so be sure to get subscribed.

Are you as excited about this as we are?Continue Reading The Eminent Domain Podcast Is Back!

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Here’s the latest in an issue that found new vitality after the U.S. Supreme Court’s decision in Cedar Point affirming that government-authorized physical entry to private property is presumptively a taking.

This is the “precondemnation entry” issue in eminent domain which several courts have addressed:

This is where a condemnor contemplates taking property and wants to get on site to check it out. Do things like surveys, examinations, tests, and sample-taking. Often, the owner of the property doesn’t mind: pay me a bit for my trouble, indemnify me in the event someone gets injured, and you can have limited access to do your business and then go on your way, condemner. But sometimes, an owner says no.

In Betty Jean Strom Trust v. SCS Carbon Transport, No. 30317 (Aug. 21, 2024), SCS is planning a CO2 pipeline though South…

Continue Reading S Dakota: Only Way To Read Precondemnation Entry Statute Constitutionally Is Allowing “minimally invasive superficial inspections” and “minor soil disturbances”

Here’s the latest takings cert petition. This one seeks review of the Seventh Circuit’s affirming the district court’s sua sponte abstaining from considering a property owner’s challenge to a Wisconsin municipality’s exercise of eminent domain.

The court concluded that federal courts could — but shouldn’t — consider the owner’s public use challenge because there were ongoing parallel state proceedings (this this case, an eminent domain case in a Wisconsin court). That alone doesn’t seem terribly controversial.

But as the petition points out, there was not actually a “parallel” state court proceeding here, because Wisconsin law apparently doesn’t permit an owner to challenge public use in the proceeding the Village filed. As the Petition puts it:

The Seventh Circuit Court of Appeals’ particularly broad approach to the Colorado River doctrine stands out among the circuits. In the case at hand, the court of appeals expanded the doctrine even…

Continue Reading New Cert Petition: When State Law Bars Owner From Challenging A Taking, Can Federal Court Abstain?

Russell standard

It is worth your time to check out the Pennsylvania Supreme Court (Middle District)’s decision in Wolfe v. Reading Blue Mountain & Northern RR Co. No. J-10A-2024 (Aug. 20, 2024).

The court invalidated an exercise of eminent domain by a railroad, concluding the taking was not for a public purpose because it was intended to keep open a road used to access a single business.

The conflict arose after the property owners exercised their right to close off the railroad’s two easements on which rail siding track and a road crossing had been located. The owners’ predecessor-in-title had obtained the property from the railroad’s precedessor, and the grant contained express reservations of those two easements. The grant also contained a termination provision. which required the railroad to remove the siding within 90 days of the owners’ demand.

The railroad had stopped using the siding and the road crossing in…

Continue Reading PA: No Funny Business – It Isn’t A Public Purpose For Railroad To Take Property To Benefit Single Customer

Screenshot 2024-08-09 at 09-59-51 Brigham-Kanner Property Rights Conference 2024 Tickets Williamsburg Eventbrite

Come join us in Williamsburg, Virginia at the William and Mary Law School for the 21st edition of the Brigham-Kanner Property Rights Conference. The Conference is unique, because its express purpose is to bring property legal scholars and property law practitioners together to discuss, what else, property and property rights law.

Yes, there’s a healthy dose of theory and academics, but also the real-world perspectives of practicing lawyers who bring the cases that put theory into practice. (New to this event and want a preview? Here’s our write-up of the 2024 Conference.)

More details here. Register here.

The days prior to the Conference launch on Thursday All that week, we’re putting on student-oriented programming.in conjunction with the WM Law Career Services Office. Sessions on “Careers in Dirt Law,” “Land Use and Real Estate Law in Practice,” and “Comparative Property Rights,” for example, presented by experienced practitioners…

Continue Reading Register Now: 21st Brigham-Kanner Property Rights Conference, William & Mary Law School, Sep. 12-13, 2024

You all have likely seen ’em, those “We Buy Houses Any Condition” billboards letting the world know that no matter what condition it might be in, there’s an outfit that says it is willing to buy your house.

Well, that outfit ran into the one other outfit that is willing to buy your house, except here, that outfit can force you to sell it. That’s right, the government. In this case, the City of Ontario, California, exercising its power of eminent domain. (As someone once famously described the power of eminent domain: “whether you know it or not, your house is for sale.”)

The city went through the usual motions to forcibly take “multiple vacant lots” next to the Ontario International(!) Airport which it claimed were blighted:

In 2021, the City held a public hearing, after which the city council adopted a resolution of necessity authorizing the City to…

Continue Reading Blight Slight: No Taking Of Property For “The Proposed Project” When No Project Has Been Proposed

We were all set to write up the Wisconsin Supreme Court’s recent opinion in Sojenhomer LLC v. Village of Egg Harbor, No. 2021AP1589 (June 19, 2024) — after all, we were already following the case — when Lawprof Ilya Somin beat us to the punch: “Wisconsin Supreme Court Rules Sidewalks are not “Pedestrian Ways” – thus Allowing Local Governments to Use Eminent Domain to Take Property to Build Them.”

Short story is that a Wisconsin statute prohibits using eminent domain to take property for a “pedestrian way,” and the Village instituted a condemnation action to take Sojenhomer’s property for a sidewalk. No way, you say?

Yes way held the Wisconsin court. The key was that pedestrian way was a defined statutory term, and thus not subject to common meanings (which would seem to include a sidewalk as a pedestrian way). The court concluded that the sidewalk did…

Continue Reading When Is A Sidewalk Not — You Know — A “Pedestrian Way”? Wisconsin Supreme Court Clues Us In

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

Our friends at the Institute for Justice have filed this cert petition asking the Supreme Court to take up the case where a New York town eminent domained the Brinkmann property for a public park.

What’s wrong with that, you ask…isn’t a public park a “classic” public use? Yes. But the twist here is there was also a showing that what actually motivated the taking wasn’t some need for another public park in the town, but rather the public’s dislike of the use the Brinkmanns intended for their land.

These are what we call “spite takings,” where the main purpose behind a condemnation isn’t really to do something public with the land, but to stop a disfavored use. Are these ok under the Public Use requirement because — as the Second Circuit panel majority held — that who …

Continue Reading New “Spite Taking” Cert Petition: Can Govt Take Property To Stop Owner From Making An Allowed – But Disfavored – Use?

This one is about Robert Moses. Yeah, that guy. You may think you know the story, but even if you do, it will be worth your time to listen to this episode of Dave and Kristen’s Infrastructure Junkies podcast. You will probably learn something new like me.

Here’s the pod’s description of the episode:

The best way to understand why we have our standard eminent domain laws and procedures may be to learn through a good story.

Houston attorney Bobby Debelak of the law firm McDowell Hetherington joins Infrastructure Junkies to tell the story of Robert Moses, who amassed incredible power despite never being elected to a public office. Morris utilized eminent domain to accomplish some of the most amazing infrastructure projects in New York. During his amazing reign, virtually all of the City, State and Federal infrastructure spending in New York flowed through Moses. Hear more about his…

Continue Reading (Another) Must-Listen Podcast: Infrastructure Junkies’ “The Greatest Eminent Domain Story That You’ve Never Heard!”

This is a must-listen, the latest episode of John Ross’s Bound by Oath podcast. This season is covering property rights, and this episode details Berman v. Parker, which may be the first case in what we’ll call the “modern era” where the Supreme Court set the judicial hands-off tone for public use challenges.

The guest this episode is our friend and colleague Amy Lavine, who wrote what we think is the seminal article deconstructing Berman (we include it as required reading in our William and Mary Eminent Domain course).

This episode is a great companion piece to BBO’s episodes on Euclid (zoning), and Pennsylvania Coal (reg takings).

On this episode: Berman v. Parker, the Supreme Court’s decision in 1954 to abandon previous constitutional limits on the government’s power to take property from Person A to give it to Person B. The decision greenlit the era of urban…

Continue Reading New Bound by Oath Episode: Berman, Public Use, And Urban Renewal