Eminent Domain | Condemnation

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Check this out: a podcast from Free to Choose Media, entitled “Eminent Domain,” published a couple of months ago.

But the description reveals a time capsule:

Recorded in 2003, Dennis McCuistion, former Clinical Professor of Corporate Governance and Executive Director of the Institute for Excellence in Corporate Governance at the University of Texas at Dallas speaks with professors Richard Epstein (University of Chicago), Gideon Kanner (Loyola Law School), Julie Forester (Southern Methodist University), and attorney Kenneth Wright about eminent domain.

Pre-Kelo. That alone makes it worth a listen. Highly recommended.

Continue Reading Free to Choose Podcast: “Eminent Domain”

In Witherspoon v. Ince, No. 24-6194 (Oct. 9, 2025), the U.S. Court of Appeals for the Tenth Circuit held that a property owner who alleged that Oklahoma’s system of private takings — where the state authorizes private parties to use eminent domain to take what looks like an easement by necessity over a neighbor’s land for access — is unconstitutional, cannot sue the State under 42 U.S.C. § 1983 to raise that claim.

The private taking is not “under color of state law,” according to the court.

If that seems counterintuitive (after all, the neighbors are literally using a State-authorized process to seize property for their own private uses), the court found a way noodle through it:

Section 1983 creates civil liability for “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any…

Continue Reading CA10: Color Of What? Private Takings Are Not Government Action

Several 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 Savannah, Georgia, January 22-24, 2026).

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 and how to apply from OCA:  

The scholarship funds the selected student’s travel, lodging and attendance at the premier property rights conference in the country, known as the ALI-CLE Eminent Domain and Land Valuation Litigation conference, and associated OCA events held annually in late January/early February. This distinctive opportunity is designed…

Continue Reading Apply Now: Owners’ Counsel Scholarship (ALI-CLE Conference)
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Here’s the latest in a case we’ve been following which presents an important issue. So much so that we filed an amicus brief in support of the property owner.

In Town of Apex v. Rubin, No. 206PAA21 (Aug. 22, 2025), the North Carolina Supreme Court held that if a taking is determined to be for private benefit and not a public use or purpose, title and right of possession “revest” with the original owner.

The court also held that if, as here, the condemnor had already seized the land and completed construction, a court is not powerless to address it and may order the condemnor to “restore the land to its pre-construction condition. Whoa.

In short, this is an important one that is well worth your review. 

Before we get underway, a note: recall that the North Carolina Constitution does not have a “takings” or “just compensation” clause. Does …

Continue Reading NC: If A Taking Is Determined To Lack A Public Use, Title Revests In Private Owner. If Construction Already Taken Place, Restoration Is An Available Remedy

Yes, the mysterious ducks remain — and seem to have multiplied.

It’s that time of the year again. Fall’s-a-coming, and that means that starting today, we’re back at the William and Mary Law School in Williamsburg, Virginia to teach two courses:

  • Eminent Domain and Property Rights (W&M is one of the few law schools in the country that offer a course in eminent domain, just compensation, and takings)
  • Land Use Controls (an especially hot topic at the moment)

The registration numbers for both courses are good (really good), and two full classrooms of Dirt Law goodness tells us something about this area of law — it’s really interesting, and a good place to make your way in the practice, and law students recognize that.

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We don’t use $400 casebooks in either class.

Time to jack back into the (takings and land use) Matrix.

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Continue Reading Back To School For Dirt Law @ William & Mary, Season 8

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That’s right, it’s time to plan on joining us at the 22d edition of the best one-day property law conference, William and Mary Law School‘s Brigham-Kanner Property Rights Conference.

As we noted, Professor William Fischel will be awarded the 2025 Brigham-Kanner Property Rights Prize at the annual Wren Building candlelight ceremony in Williamsburg on October 23, with the following day being devoted to a celebration of his work and career, and discussions of the hot topics in property rights law.

The Conference is expressly designed to get legal academics and the nation’s best dirt law practitioners in the same room, discussion how legal scholarship and law practice work hand-in-hand to shape the law. 

More details:  

The Brigham-Kanner Property Rights Prize is presented annually to a scholar, practitioner, or jurist whose work affirms the fundamental importance of property rights. It is named in honor of the late Toby Prince…

Continue Reading Registration Open: 22d Brigham-Kanner Property Rights Conference, Oct. 23-24, 2025, Williamsburg

An interesting and timely decision from the U.S. Court of Appeals for the Fifth Circuit.

In United States v. Bennett, No. 23-40680 (July 24, 2025), way back in the day Hidalgo County, Texas, acquired an easement over her land to construct and maintain a flood-control levee, with the County soon thereafter assigning its rights to the federal government.

Flash forward to 2008, and the feds constructed a portion of the border wall atop the levee, for the dual purposes of flood control (it said) and border protection. Flash forward again to 2020, when the feds instituted an eminent domain proceeding “to construct and maintain fencing, barriers, and related structures to secure the border.” Slip op. at 3.

Bennett then asserted that the original wall built by the feds exceeded the scope of the flood-protection easement which the County had taken, and the feds had therefore been trespassing. This, in…

Continue Reading CA5: The Border Wall Isn’t A “Fixture”

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Over there is where the “little pink house” was.
July 26, 2025.

Regular readers know that from time to time, we make what we call property or takings pilgrimages to the sites of famous cases. Inter alia: Kaiser Aetna, Nollan, Dolan, Loretto, Penn Central, Hadacheck, the High Line, Boomer.

Included in that are eminent domain cases of course, including Chicago Burlington, and Berman. 

With the recent 20th anniversary of Kelo v. City of New London just past, we thought it appropriate to revisit the site when we were in the neighborhood to see what’s up and what “progress,” if any, New London has made in effecting those plans it claimed to have, which necessitated the taking of Susette Kelo’s “little pink house.” For Professor Gideon Kanner’s thoughts on “Eminent Domain Projects That Didn’t Work Out…

Continue Reading Property Rights Pilgrimage: The Kelo Property And House, Twenty Years On

Readers of this blog are surely familiar with the soft spot we have in our heart for the Australian film, “The Castle.”

We described it as “Kelo Down Under,” noting that despite its comic spin, the film accurately portrays why owners of property object to eminent domain (in Australia, “compulsory acquisition“).  Eminently quotable, it captures “the vibe of the thing.” 

Which is why we’re posting this piece that declares the movie, “the best Aussie movie of all time.” Why? The piece lists the reasons why. A bit click-baity, but still a good read. 

Vibe

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left behind by a student a few years ago who got it.Continue Reading “There’s no doubt about it – The Castle is the best Aussie movie of all time”