Eminent Domain | Condemnation

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TexasEmDomain2025Houston

MC: Texas is so big…

Audience: How big is it? 

MC: Texas is so big it needs two statewide eminent domain conferences!

That’s right, in addition to the Texas Eminent Domain Conference in Austin, there’s another one in Houston. We’ve attended both in the past, and can speak from experience that they are excellent.

Registration for the Houston event, August 14-15, 2025, is ongoing here. Details on speakers, topics, and related are available here. Here’s the agenda. Continue Reading Still Time To Register: 2025 Texas Eminent Domain Conference (Houston), August 14-15, 2025

Say hello to the country music duo The Doohickeys. They have a great sound (both country and western). Check ’em out!

With such songs as “All Hat, No Cattle” (the title track of their latest album), “I Wish My Truck Was Bigger,” “This Town Sucks,” “Rein It In Cowboy,” “Too Ugly to Hitchhike,” and “City Folk. 

Above is a parody ad for a rural eminent domain lawyer, something they are familiar with. (Or at least we assume its a parody ad.)

And this, the song by which we first learned of them, “Farm Lawyer,” about singer Haley Spence Brown’s dad, Ward Brown, a Missouri eminent domain lawyer and colleague. 

But one day a man came knockin’ in a fancy pinstripe suit.
He said “I got a note here from the government, and …

Continue Reading The Doohickeys – Eminent Domain Country & Western

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

In Idaho Power Co. v. Bean, No. 23CV12213 (July 9, 2025), the Oregon Court of Appeals reversed a trial court ruling which held that Oregon’s precondemnation entry statute, which requires “reasonable compensation” for physical damage or substantial interference with the owner’s possession or use, sets the bar too high and the U.S. and Oregon Constitutions require “just compensation” for any appropriation of a right to physically invade, not just for physical damage or substantial interferences.

The court of appeals held that “temporary precondemnation entries–at least insofar as they do not cause any ‘substantial interference with the property’s possession or use’ or ‘any physical damage’–are consistent with ‘longstanding background restrictions on property rights’ and ‘traditional common law privileges to access private property.'” Slip op. at 699. In short, the court concluded that the U.S. and Oregon constitutions permit exactly…

Continue Reading Oregon App: Not All Precondemnation Entries Are Takings – It’s Gotta Be “Substantial”

The latest episode of the “Is That Even Legal?” podcast features a familiar voice, that of former Eminent Domain Podcast host, Clint Schumacher who joins host Bob Sewell as a guest to discuss takings by eminent domain, and by overregulation. 

Clint joins the ITEL Podcast to discuss a situation that has been in the news lately, the possible taking of American-born Pope Leo XIV’s childhood home in Illinois to preserve it. What was just an old house yesterday is today history worth preserving, apparently!

Here’s a description of the episode:

What happens when the government decides it needs your land? Does the Constitution really allow officials to seize your family home, farm, or business property against your will? The answer might disturb you.

Attorney Clint Schumacher, a leading eminent domain expert, joins us to unravel the complex world where constitutional rights, property ownership, and government power collide. Schumacher…

Continue Reading New “Is That Even Legal” Pocast Ep: “This Land Is Your Land…Till It’s Not” (Clint Schumacher)

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Be sure to check out the latest scholarship from lawprof Molly Brady, which sheds new light on the public use question in eminent domain, “Debates Over ‘Public Use’ in the State Constitutional Conventions,” forthcoming from the Yale Journal of Regulation. 

Here’s the Abstract:

Historians and legal scholars alike have previously noted that the meaning of “public use” began to change in the nineteenth century, continuing into the twentieth. In the hands of some state courts, “public use” expanded from an approach dependent on “use by the public” to one that at least occasionally tolerated “use for the public benefit.” This shift in meaning laid the groundwork for Berman v. Parker, the urban renewal decision from the United States Supreme Court that provided support for the broad reading of “public use” in the 2005 decision Kelo v. City of New London.

In this Essay, I focus my…

Continue Reading Forthcoming Article: Maureen Brady, “Debates Over ‘Public Use’ in the State Constitutional Conventions,” Yale J. Regulation

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It hardly seems like two decades have passed. After all, it was a mere 10 years ago we were lamenting “Kelo At 10: Still Stinks, And A Decade Has Not Lessened The Odor.” 

But yes, it was twenty years ago today … the U.S. Supreme Court, by the thinnest of margins, held in Kelo v. City of New London, 545 U.S. 469 (June 23, 2005) that there’s nothing inherently suspect about “economic development” takings to justify a higher level of judicial scrutiny than the judges-as-poodles standard of review applied in Public Use challenges to takings for every other reason.   

Susette Kelo’s home was taken on the claim that it was needed as part of the package of incentives to lure a pharmaceutical company to set up shop in New London, which would in turn, raise the overall economic climate in the city. That butterfly-effect theory was …

Continue Reading Unhappy 20th Anniversary, Kelo v. City of New London

It seems very appropriate that we’re posting the Texas Court of Appeals’ decision in Burgess v. City of Wentworth Village, No. 02-24-00252 (June 19, 2025) today, the twentieth anniversary of Kelo v. New London.

Because on the Kelo-versary, we start as the Burgess opinion did: an epigram wherein the court quoted a concurring opinion recognizing the inherent unfairness of eminent domain and how just compensation is very often inadequate:

On occasion, to serve a public purpose, a citizen’s private property must be taken without his consent. We tolerate such intrusions because society cannot function without roads, schools, military facilities, and other vital infrastructure. Eminent domain also requires “just” or “adequate” compensation, to be sure. U.S. Const. amend. V; Tex. Const. art. I, § 17(a). But the condemnation process is complicated, time-consuming, and sometimes confusing. And no compensation can accurately value the sweat, tears, pride, love, beauty, and…

Continue Reading Texas App: No, A Taking For A “Short-Game Practice Area” Isn’t Entitled To Judicial Deference Under Post-Kelo Changes

A short one from the Virginia Court of Appeals. Very Virginia-specific, but there are lessons here for those of you outside the Old Dominion. 

In City of Virginia Beach v. Mathias, No. 2073-23-1 (June 10, 2025), the court held that when a statute requires the condemnor to do something prior to taking property, the condemnor better do that thing. Close enough isn’t good enough. 

In 2022, the Virginia General Assembly began requiring that at a time between the condemnor’s offer of purchase and when it files the certificate of take, it must undertake a title examination, among other things:  

Notwithstanding any provision of law to the contrary, a condemnor, prior to making an offer to acquire a fee simple interest in property by purchase or filing a certificate of take or certificate of deposit pursuant to Chapter 3 (§ 25.1-300 et seq.) or § 33.2-1019, shall (i) conduct or…

Continue Reading Va App: When Statute Requires Condemnor Provide 60-Year History Examination Of Title But It Doesn’t Do So, Guess What?

Magna_Carta_(British_Library_Cotton_MS_Augustus_II.106)

810 years ago today* on a grassy plain down by the river, the barons convinced bad King John to affix his seal to Magna Carta. Or the Magna Carta. Or Magna Charta. However you want to grammarize it. (And no, he didn’t “sign” it, they didn’t do things like that back then.)

And boy was that guy bad even by the standards of medieval royals: when you type “bad king…” in your search engine, the first suggested search is “bad king … John.”

Badkingjohn

There’s a lot of good stuff in Magna Carta — and a lot of stuff that has been rendered irrelevant or quaint by the passage of time, and even some stuff that we’d consider cringe-worthy today (see art. 10, for example).

But we takings geeks all know and continue to appreciate article 28:

Nullus enarius aries, vel alius ballivus noster, capiat enar vel…

Continue Reading Happy 810th (The) Magna Carta (Charta) Day!

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Here’s news we’ve been waiting for.

The William and Mary Law School announced that Professor William Fischel will be awarded the 2025 Brigham-Kanner Property Rights Prize at the annual conference in Williamsburg in October 2025. 

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 Brigham, a leading property rights attorney, and the late Gideon Kanner, a devoted scholar of property rights who was Professor of Law at Loyola Law School in Los Angeles.

Professor Fischel taught in the Economics Department at Dartmouth from 1973 until his retirement in 2019. His scholarship focuses on the law and economics of local government, and his expertise includes local government law, school finance, zoning and land use controls, property taxation, and regulatory takings law. He is the author of five…

Continue Reading And The 2025 Brigham-Kanner Property Rights Prize Goes To…Professor William Fischel