2014

The Morris Family LLC v. South Dakota DOT, No. 26831 (Dec. 23, 2014), the latest from the South Dakota Supreme Court, is more focused on due process and civil procedure than on eminent domain, but since the background of the case involves a 1970 condemnation judgment, and a present claim for inverse condemnation claim, we’re all ears.

In 1970, SDDOT condemned part of what is now the Morris property for highway widening. The taking required moving the property’s driveway. The case was eventually settled and the court entered judgment. The judgment noted the state was granted “the right to control access to the right of way[.]” Slip op. at 10. 

Flash forward to the present, and “Morris Family asserts that it alleged two distinct causes of action—one claiming it was the victim of inverse condemnation and the other claiming that the State and the City of Watertown conspired to…

Continue Reading South Dakota: No Property Interest In Highway Access

Continuing with our year-end opinion dump, here’s the conclusion of the Texas Court of Appeals in City of Blue Mound v. Southwest Water Co., No. 02-13-00343-CV (Nov. 13, 2014):

Because as a matter of law the City is attempting to condemn Appellees’ water and wastewater system as a going concern, because as a matter of law Appellees are entitled to compensation for going-concern value as an element of this purported taking, because the general Texas condemnation statutes provide no mechanism for the awarding of going-concern value as held in Lone Star Gas Co., and because Lone Star Gas Co. remains binding precedent, we hold that Appellees conclusively established their entitlement to summary judgment on the ground that no statutory procedures exist authorizing the City’s condemnation suit in this case in district court.

Slip op. at 29.

City of Blue Mound v. Southwest Water Co.…

Continue Reading Tex App: City Can’t Condemn Wastewater Facilty

Most of you already know that under the Fifth Amendment’s Takings Clause, the fees expended by a property owner to recover just compensation are not recoverable as part of just compensation. That has never made much sense to us, for how does a condemnor fulfill its obligation to put the property owner in as good a position pecuniarily as if her property had not been taken, if the property owner must bear the cost of obtaining just compensation when the condemnor has not offered it? As a practical matter, this alone keeps many property owners from challenging a condemnor’s offer, which results in systematic undercompensation. Some states have deemed fee shifting a requirement of their state constitutions, while others have adopted statutes that allow fee-shifting (but those are matters of legislative grace). 

South Carolina is an example of the latter, and has a statute (scroll all the way to the bottom…

Continue Reading Eminent Domain, Contingency Fees, And Fee-Shifting Statutes: A “Constellation Of Factors”

The DOT took some of the Garretsons’ land, and the construction of the bypass highway which necessitated the taking ended up flooding the Garretsons’ remaining land, so they sued, alleging the damage was caused by the DOTS’s “gross negligence in the constructon and change of drainage.” The trial court dismissed, because the DOT is statutorily immune if its negilgent design of a highway improvement results in damage.

Although the Garretsons argued on appeal that their complaint included a takings claim (which as a constitutional claim, is not subject to government immunity), the Mississippi Court of Appeals in Garretson v. Mississippi DOT, No. 2013-CA-01511 (Nov 20, 2014) held that their complaint was framed in terms of the DOT’s negligence, and nowhere used the word “taking” or similar. Even under liberal pleading rules, the complaint wasn’t pleaded with enough specificity to put the DOT on notice. Slip op. at 11.

The argument…

Continue Reading Mississippi App: If You Allege A Taking, Your Complaint Should Mention “Taking”

Via colleague Dwight Merriam, comes this story from today’s New York Times, “Even Loyalty No Guarantee Against Putin,” about the post-Soviet version of crony capitalism:

A prominent businessman who knows Mr. Yevtushenkov said that Mr. Putin had eroded the very notion of property rights in Russia, even for those who displayed fealty. He said that Mr. Putin himself had described private ownership of strategic industries with the Russian word to roost. “A chicken can exercise ownership of eggs, and it can get fed while it’s sitting on the egg,” he said, “but it’s not really their egg.”

We suspect the notion of “free” enterprise only goes so far in other locales also (see here and here). And before we throw stones, we also may have some explaining to do. 

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Continue Reading From Russia, With Love: “State Trumps Capitalism”

Ohio-sommers

Major interstate highway bridge construction nearby resulted in homeowners suing ODOT for inverse condemnation because “extreme noise, pounding and vibrations” caused their home (red arrow) to be uninhabitable. The Ohio Court of Claims granted ODOT summary judgment, and the property owners appealed.

The homeowners argued that the trial court applied the wrong standard, and should have analyzed the undisputed facts under the Penn Central test for a regulatory taking. Problem was, they hadn’t referred to Penn Central in the Court of Claims, arguing only that ODOT had “‘substantially and materially’ interfered with their use of their property,” and had physically trespassed. 

In Sommer v. Ohio Dep’t of Transportation, No. 13AP-848 (Dec. 23, 2014), the Ohio Court of Appeals rejected the homeowners’ argument, concluding that the Court of Claims properly analyzed the facts under the correct standard: “‘As ordinarily understood, the term, ‘taking,’ as used in the Constitution, comprehends…

Continue Reading Ohio App: “Inconveniences” Caused By Highway Construction Not A Taking

Interviewposter

Bottom line: low expectations exceeded. 

Several months ago, when we first saw the previews for “The Interview,” it didn’t look all that funny, even though we liked James Franco and Seth Rogan’s last joint effort (ha, ha), the entertaining stoner comedy “This is the End.” Mildly disappointed (our general rule is if the producers can’t make a good trailer, the film itself is very unlikely to be good), we placed “The Interview” on our mental “only-if-it-ends-up-streaming-on-Netflix” list. 

But that, of course, was before all the will-they-or-won’t they, was-it-the-No-Ko’s-or-wasn’t-it drama surrounding the film’s release, when it became part of the momentary cultural zeitgeist that if you don’t see the film, the terrorists win. Even POTUS got in on the act (“As the president made clear, we are a country that believes in free speech, and the right of artistic expression.”), despite…

Continue Reading “The Interview” Reviewed: Not Quite Ready For The John Peter Zenger Honorary Oscar

You regulatory takings mavens know the “denominator” issue. It first came into our collective consciousness in the Penn Central case, where the Supreme Court concluded, among other things, that the property to be analyzed for regulatory takings purposes was not just Penn Central’s air rights, or even the parcel which it wanted to develop. Instead, the Court concluded that the property against which the development ban was to be measured was the entirety of Penn Central’s property in the area. (For more on the case, see Professor Kanner’s article, “Making Laws and Sausages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill of Rights J. 679 (2005)). 

From that inasuspicious beginning, there’s been an entire body of jurisprudence that has built up around what the “relevant parcel” is when a court is determining a regulatory taking, also known as…

Continue Reading Wisconsin App: Two Parcels Can Be Treated As One For Regulatory Takings Purposes, If They Are Contiguous

The statutory standards for an original jurisiction action in the Hawaii Supreme Court challenging the outcome of an election are pretty rigorous. You’ve got to show acts or omissions that “could cause a difference in the election results.” Haw. Rev. Stat. § 11-172. In other words, you must show that if you are right about the facts, the winner won’t be the winner. Indeed, the bar is set pretty high just to survive a motion to dismiss, much less win, since the complaint itself must demonstrate “error, mistakes or irregularities that would change the outcome of the election” to avoid dismissal for failure to state a claim.

The Twombly heightened pleading standards applicable in the federal courts have not been adopted by Hawaii courts, at least in typical civil cases where the pleading bar is set pretty low. But in original jurisdiction election contests, the opposite may be true, and a…

Continue Reading HAWSCT Confirms Election Contests Are Tough!

Here’s the Virginia Department of Transportation’s answering brief in the case which we posted about last week, Ramsey v. Commissioner of Highways, now pending before the Virginia Supreme Court. 

Under Virginia’s condemnation procedures, as a prerequisite to a court exercising jurisdiction over an eminent domain action, a state condemning agency must as an initial step present to the property owner a statement of “the amount which [the condemnor] believes to be just compensation,” and must include an appraisal if an appraisal is required.

The trial court viewed the required “statement” as a “settlement offer,” and prohibited the property owner from both telling the jury about the statement, and cross-examining the state’s appraiser about it. Even though the state’s initial statement of just compensation was $246,292, and later, its new appraiser at trial testified that just compensation was only $92,127. The “Savage Appraisal” in the headline of this post …

Continue Reading A “Savage Appraisal” Indeed: DOT Argues That Its Statement Of Valuation Is A Confidential Settlement Offer