We’ve been there before, but even so, this video is worth your time. It tells the story of Seneca Village, located within the borders of what now is Central Park.
There are eminent domain and property rights stories everywhere you look.Continue Reading A Return Visit To NYC’s Seneca Village
Each spring, we do a smaller course at the William and Mary Law School (known as a “Directed Reading”) that focuses on some interesting property issue. The class reads a book and uses it as a springboard for discussion.
No exam, no paper, just an exploration of the issues as a way about thinking about property more deeply. The format is kind of like a property nerd book club. Read a chapter, discuss; etc. Our Spring 2020 book was Sean Wilentz’s “No Property in Man: Slavery and Antislavery at the Nation’s Founding,” and the 2019 book was Howard Mansfield’s “The Habit of Turning the World Upside Down: Our Belief in Property and the Cost of That Belief.”
This upcoming semester we’re reading Professor Bart Wilson’s newly-published “The Property Species – Mine, Yours, and Human Mind.”
What is property, and why does our species have
Go on, read the facts in the California Court of Appeal’s (unpublished) opinion in San Joaquin Regional Transit District v. Superior Court, No. C084755 (Dec. 1, 2020). It’s worth your time, believe us.
After chasing from California a long-standing manufacturing and service business (to Illinois) by instituting condemnation proceedings on the property on which its Stockton plant was located and then obtaining immediate possession, the District changed its mind and abandoned the taking. The owner sought damages under a statute (Cal. Code of Civ. P. § 1386.620).
The District argued that it was not liable for all damages proximately caused by the proceeding, because the owner had not “moved from the property.”
Wait, you say, I thought you just told me that the condemnor obtained possession of the property? Yes, it did, in two phases. First, the District and the owner stipulated to possession of the property subject
Here’s the Reply in Support of what we think is a very worthy cert petition, and which responds to the recently-filed BIO.
For the background of the case, check out this post (“What Constitutes a Loss“). The property owner has also summarized the situation thusly in its petition:
The State of Hawaii zoned for agricultural use land that it knew was not viable or appropriate for such use. At the property owner’s request, it rezoned it for urban use but, after Plaintiff Bridge Aina Le‘a began developing it, the State illegally (as the Hawaii Supreme Court later held) “reverted” the land to agricultural use. A jury found this to be a 5th Amendment taking under this Court’s standards in both Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978).
Continue Reading Reply In Penn Central And Lucas Takings Case
A short (unpublished) one from the Federal Circuit, Albright v. United States, No. 19-2078 (Dec. 1, 2020).
This rails-to-trails takings case turned on the predicate question: do the plaintiffs own private property? That question turned on the lex loci, and whether, under Oregon law, the original right-of-way conveyance meant to grant to the railroad an easement or a fee simple interest.
Thus, the opinion naturally relies solely on Oregon’s property law: if the grant was for a limited purpose (“right of way” or “railroad”), then it was an easement; if the grant did not specify the use or was otherwise unlimited, it was a conveyance of fee simple. That was enough for the federal court:
In addition, none of the deeds provide for a reverter or otherwise contain language limiting the use that the grantee could make of the land. To the contrary, each of the deeds purport
Continue Reading Fed Cir: No Taking, Because Oregon Property Law Is Clear (But Is It?)
We have now wrapped up the coursework portion of the Fall semester at William and Mary Law School, so here’s an after-action report from the two full courses which I taught in a “hybrid” style (some students live, in the classroom; others attending via Zoom live; and still others with the option to attend via the Zoom recording). The two courses: (1) Land UseEminent Domain & Property Rights.
Overall, it went much better than I think nearly everyone else expected. When I say “everyone else,” that is because when I posted photos of the “distanced” classroom that the law school set up in the adjacent indoor Tennis Center, the reactions were mostly dubious, or even scornful. I had much less doubt about teaching and learning in a non-typical environment. The in-person option, I believed, was essential, and anything less would likely be … less.
So off
Continue Reading Wrapping Up A Semester In A “Hybrid” Law Classroom (Never Go “Full Remote”)
Here’s the State of Hawaii’s Brief in Opposition in a case we’ve been following for what seems like forever.
Check it out. The State waived response, but after a whole bunch of amici filed briefs in support of a cert grant (ours included), at least one of the Justices wanted to hear its arguments in opposition.
Instead of the State’s “Solicitor General” filing the brief, it hired a SCOTUS player to argue that this case isn’t worth the Court’s time. The need to hire the D.C. big guns with name-recognition instead of relying on the in-house lawyers who are the State’s appellate experts somewhat belies any assertion that the State isn’t concerned about this case.
Here are the Questions Presented as (re)framed by the BIO:
1. Whether the Ninth Circuit correctly held that Petitioner did not suffer a taking where the State rezoned Petitioner’s property because
Check this out, the latest episode of the Pendulum Land Podcast, in which we briefly return to chat about what’s on the Thanksgiving menu (hint: Spam® and oysters).
Spam® because we 808 people like that stuff, and oysters because the Virginia Supreme Court recently heard oral arguments in an important inverse condemnation case involving…oysters. More on that case here, including the briefs.
Stream the episode above, or download it here.
Haiku was also on the menu. (We apologize in advance.)
Tabasco Spam® is
the best Spam® – no demurrer.
Exceptions overruled!
Darling, what is on
the court’s Thanksgiving menu?
Dare I say oysters?
Condemnor’s cocktail –
Care to imbibe a highball?
Regrets: lowballs only.
Kelo: very wrong.
With Barrett now in D.C.,
time to revisit?
Been relocated?
Right-of-way bumming your trip?
Pendulum swoops in.
Clint and Pendulum:
Podcasts together, in Continue Reading Spam® For Thanksgiving? Mais Oui!
Check this out, the Complaint we filed a couple of weeks ago in the U.S. District Court for the Western District of Virginia, in Grano v. Rappahannock Elec. Coop., No. 3:20-cv-00065-NKM (W.D. Va. Oct. 28, 2020).
It’s not a true “takings” case because the claims for relief are limited to due process and Contract Clause and the plaintiffs are not seeking just compensation, but there’s a takings flavor, because the due process problem alleged is failure to condemn and also provide for compensation.
We’re not going to comment in depth because it’s our case, and we’d rather just let the complaint speak for itself at this point. But the short story is that recently, the Virginia General Assembly adopted a statute directing that all existing easements in which the servient estate owner granted a right to use property for electrical distribution now include the right of the dominant estate
Today, Friday, November 13, 2020, is the day that the Supreme Court is scheduled to decide whether to decide a case we’ve been following for a long time (and one in which we filed an amicus brief urging the Court to take up the case).
In Cedar Point Nursery v. Shiroma, 923 F.3d 524 (May 8, 2019), a 2-1 panel of the Ninth Circuit affirmed the dismissal of a complaint for failure to plausibly state a takings claim under Twombly/Iqbal. At issue was a regulation adopted by California’s Agricultural Labor Relations Board which requires agricultural employees to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to “access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.”
The Ninth Circuit panel
