Court of Federal Claims | Federal Circuit

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The U.S. Court of Appeals’ opinion in Barlow v. United States, No. 22-1381 (Nov. 22, 2023), isn’t a groundbreaking opinion on takings (although yes, it did reverse the Court of Federal Claims’s dismissal of the property owner’s rails-to-trails takings claim), but is still worth a quick read.

The major issue was whether, under Illinois property law, a grant of a “right of way” intended to grant a fee simple absolute estate to the grantee (as the United States argued, and the CFC held), or whether it was an easement. The Federal Circuit came down on the side of the latter, holding that although there is a presumption of a grant in fee, “that presumption was rebutted by other express words in the [grant].” Slip op. at 9.

The grant included the words “right of way” (which indicate an easement), but also other words and terms indicating an easement and…

Continue Reading CAFED: “Right of Way” For Railroad Shows Intent To Grant An Easement

ALI-CLE brochure cover page

Here’s the brochure and the full agenda and registration information for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference at the JW Marriott in New Orleans, February 1-3, 2024.

This is the long-running nationally-focused conference on all things eminent domain, takings, valuation, and related. We have three tracks, from which you can choose a la carte – Practice, Substantive, and Condemnation 101:

For over 40 years, we’ve been bringing eminent domain practitioners together to examine the latest issues, engage in healthy debate, and get the information they need to stay current in their practice. This year – our 41st – is THE perfect time to reunite with your eminent domain colleagues. There will be plentiful opportunities to meet and mingle with the faculty and other registrants – throughout the conference and at evening social events. Attendees come back year after year to make new friendships and renew…

Continue Reading Here’s The Program For The 41st ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

HSBA 10-2023

Yesterday, during the Annual Meeting of the Hawaii State Bar Association, we participated in a program sponsored by the Real Property and Financial Services Section, “Inverse Condemnation & Paying for Disasters.”

As you can see above, we joined lawprofs Shelley Saxer and David Callies to share thoughts about inverse claims, and the difference between these property arguments and tort negligence claims.

Here are some of the key cases and materials which we mentioned (or should have):

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Continue Reading Links And Materials From “Inverse Condemnation & Paying for Disasters”

The U.S. Court of Appeals for the Federal Circuit’s opinion in Stimson Lumber Co. v. United States, No. 22-1201 (Oct. 2, 2023) does not add a lot to the overall regulatory takings canon, but the court and the caption might give you a hint that this one is a Trails Act takings claim.

As is often the case in these type of cases, the dispositive issue is a question of state property law; here, whether railbanking is within the scope of the easement for a “right of way” which Stimson’s predecessor-in-title granted. The court concluded that under Oregon law, this was a “general terms” easement, which allows “unlimited reasonable use,” and was not limited to a right of way for railroad purposes. In short, the terms of the easement itself contemplated virtually any use.

We’ve been down this (rail)road before, as we noted in this amicus brief in a similar…

Continue Reading CAFED: Terms Of Granted Easement Allowed “Unlimited Reasonable Use,” So No Taking For Railbanking

The buried lede in the U.S. Court of Appeals for the D.C. Circuit’s opinion in Valancourt Books, LLC v. Garland, No. 21-5205 (Aug. 29, 2023) is that the government doesn’t have that big of a role in copyrights, at least in the bare minimum of copyright protections.

We’re no copyright experts (that’s an understatement), but we knew the basics here: in order to have a copyright and all the rights that entails, the owner need do nothing more than fix the work in a tangible medium. No formalities are necessary, including publication. As the court put it, “[c]opyright thus accrues automatically upon creation of an original work in a tangible medium, and creators need not take any further action such as publication or registration to gain the protection.” Slip op. at 4.

You may register your copyright to obtain certain other benefits — for example, registration is prima facie…

Continue Reading DC Circuit: US Copyright Office’s Requirement To Turn Over Copies Is A Taking

Untitled Extract Pages

Two years ago, Owners’ Counsel of America endowed a scholarship in the name of its founder, property rights advocate and trial lawyer Toby Prince Brigham (1934-2021). The scholarship is for a second- or third- year law student to attend the annual three-day ALI-CLE Eminent Domain and Land Valuation Litigation Conference (the upcoming Conference will be in New Orleans, Louisiana, February 1-3, 2024).

The Conference affords the Scholar an all-expenses-covered opportunity to meet and network with leading property rights and eminent domain lawyers from across the country, while also learning about property law and practice. 

Here’s the official description from OCA:  

In honor of Toby’s legacy of professionalism and achievement, in 2021 OCA established the Toby Prince Brigham OCA Scholarship to pay for all expenses of a second or third year law student to attend the ALI-CLE Eminent Domain conference and associated OCA events held annually in January. This unique…

Continue Reading Owners’ Counsel Toby Prince Brigham Scholarship – Applications Being Accepted

Here’s the latest in an issue we’ve been following.

Let’s say the government thinks you have committed a crime (or someone else has). To investigate, it seizes property as evidence or potential evidence. But after things wrap up and it no longer needs the property as evidence, the government doesn’t return it to its owner. Taking or no taking?

Some courts say it could be a taking. Others say no.

In Jenkins v. United States, No. 22-1378 (June 28, 2023), the U.S. Court of Appeals for the Federal Circuit said maybe. Or at least it isn’t not a taking simply because the government was lawfully exercising its police power. And if there may be open questions about the whether the owner sought recovery of the property through available procedures or outright abandoned it, then a court entering summary judgment for the government isn’t right.

Most of the…

Continue Reading CAFED: Just Because The Govt Seized Property As Evidence Doesn’t Mean It Can Keep It Without Compensation

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

In Ideker Farms, Inc. v. United States, No. 21-1949 (June 16, 2023), the U.S. Court of Appeals for the Federal Circuit held that temporary, but recurring government-caused flooding was correctly treated by the Court of Federal Claims as a categorical per se taking, and not under Arkansas Game & Fish‘s Penn-Central-plus multifactor test. The court also held that the property owners are entitled to just compensation for their lost crops.

The opinion is pretty dense (39 single-spaced pages) so we’re not going to provide a blow-by-blow account of the arguments and the court’s reasoning. But we will hit some of the highlights:

  • The Missouri River floods annually. In the 1990s, the Corps of Engineer and Fish and Wildlife Service “began discussions concerning proposed changes to the River designed to mitigate the environmental impact” of the federal flood

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Continue Reading CAFED: Temporary But Recurring Flooding Is A Categorical Taking, Not Penn-Central-Plus

Today’s post is by our Pacific Legal Foundation colleague Kady Valois, writing about a recent Federal Circuit Rails-to-Trails takings case, Behrens v. United States, No. 22-1277 (Feb. 13, 2023).

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How The West Was Won: Easements!

by Kady Valois

There’s a saying that the west was won by pioneers, settlers, and adventurers.

And while that may be somewhat accurate, what’s clearer still is that the west — at least the west we know today — was built and developed because of railroads. We owe a lot to railroads because this nation was built by the coal engines that carried steel, food, and people to areas never previously explored by Americans. Many of these railroads were built on easements or rights-of-way on private property, subject to the fee owner’s reversionary interest: should the easement ever not be used for railway purposes, the property is supposed to revert…

Continue Reading Guest Post – Kady Valois, “How The West Was Won: Easements!”

IRWA header

The International Right of Way Association‘s Real Estate Law Committee produces twice-a-year reports “which contain summaries of eminent domain decisions and legislation within the United States.”

And what is really nice is that they make the report available.

Here’s the latest.

We’re posting it here because we’re one of the co-authors. Hat tip to our co-authors Brad Kuhn, Jillian Friess Leivas, and Ajay Gajaria.

The report is short, and doesn’t contain a lot of fluff. Just what you wanted.Continue Reading IRWA’s Summary Of Major Eminent Domain Cases & Legislation (June-Dec 2022)