Rails-to-Trails

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CornercrossingThe opinion gets that diagrams are good. 

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

A case that should end up in Property casebooks (it will almost certainly make an appearance in our William and Mary Eminent Domain and Property Rights course in the fall).

Dirt lawyers know the “ad coelum” doctrine (owner owns airspace, and down to Hades) has a lot of practical challenges in the modern world. The Supreme Court decided a while back in United States v. Causby, 328 U.S. 256 (1946) that no, it isn’t violating the surface owner’s property rights for aircraft to fly high up. In the modern world, the owner can’t reasonably expect to be compensated for invasions into the coelum, except when the invasion is down fairly low, and likely to cause a problem on the surface. The doctrine has some continuing vitality, especially in that all-to-frequent…

Continue Reading CA10 On Causby, Open Range, And Corner Crossings: Owners Have A Right To Exclude, But Not If Doing So Fully Encloses Public Lands

Hyatt

One from the U.S. Court of Federal Claims that is worth your time at least to skim. And the opinion is worth reading if only for the court’s conclusion which we’ve reproduced above.

Hyatt v. United States, No. 23-399 (Jan. 16, 2025) is, as the court described it, “a typical rails-to-trails action[.]” The issue resolved here was how much the property owners were entitled to recover in attorneys fees and expenses, now that they prevailed on the merits.

Under the Uniform Relocation Act, a property owner who obtains compensation for a regulatory taking may recover reasonable attorneys fees and costs. The opinion noted:

Specifically, in actions brought under the Tucker Act or the Little Tucker Act in which a plaintiff is compensated for the taking of property, the URA provides for the recovery of “such sum as will in the opinion of the court or the Attorney General reimburse…

Continue Reading CFC: Attorneys Fee Shifting “incentivizes the government to negotiate fairly, minimize delays, and avoid frivolous takings”

With our tongues firmly planted in cheeks, the Planning Chairs for the upcoming 42d edition of this popular and venerable Conference bring you this “breaking news” report from San Diego!

As you know, in addition to being the best nationally-focused conference on the subjects that we love and a venue that is nearly certain to have some of the warmest winter weather in the continental United States, and we went on-location from some of the local highlights: the beaches, Torrey Pines, the Zoo, Balboa Park, the Gaslamp Quarter, and Coronado to name but a few.

More about the Conference here, including registration information.

Here are some of the highlights:

  • Property Rights at the Supreme Court: DeVillier and Sheetz and What’s Next
  • Slow Take: Possession, Rent, Relocation, and Offset
  • The Jury’s View: How Jurors See Your Case
  • From Penn Coal to Penn Central: How to

…
Continue Reading Breaking News: Come Join Us For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference, San Diego, Jan 30-Feb 1

Check out the opinion of the Court of Federal Claims in Nix v. United States, No. 23-704C (Dec. 11, 2024). Fascinating stuff.

We post it here not because it breaks new ground, but due to the subject matter of the lawsuit: the alleged taking of a film that captures (in part) the assassination of President Kennedy in 1963.

No, this isn’t the famous Zapruder film, which was also the subject of a well-known takings claim. This case involved the “Nix film,” taken that fateful day “from an angle opposite the more famous Zapruder film. The Nix film thus captures Abraham Zapruder and the area around him, where some claim a gunman other than Lee Harvey Oswald was hiding.” Slip op. at 2. 

Nix licensed the film to UPI, which “unbeknownst to him … transferred the Nix film to the United States House of Representatives Select…

Continue Reading CFC: Complaint Adequately Pleaded Physical Taking Of JFK Assassination Film

2025 San Diego

Get ready to join your colleagues and friends in San Diego for the 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

The 41st Conference was in New Orleans. Here’s a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.

Here are some of the highlights of the upcoming Conference:

  • Property Rights at the Supreme Court: DeVillier and Sheetz and What’s Next
  • Slow Take: Possession, Rent, Relocation, and Offset
  • The Jury’s View: How Jurors See Your Case
  • From Penn Coal to Penn Central: How to Prove “Too Far”
  • Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
  • Kelo at Twenty: What Changed, What Didn’t, and What’s on the Horizon
  • Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land’s Inverse Condemnation Taking
  • Ethics: Guiding the Trolley: Perspectives on Professional Ethics in

…
Continue Reading Registration For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference Is Underway (Don’t Miss Out!)

You remember that old adage (or maybe its a cliché?) that “a conservative is a liberal who has been mugged?” Well, here’s your environmentalist analog.

In Echeverria v. Town of Tubridge, No. 23-AP-291 (Aug. 2, 2024), the Vermont Supreme Court held that property owners’ lawsuit asserting their right to prohibit the town from allowing bicycling on hiking trails on their land, and to prohibit it from allowing members of the public onto the property to maintain the trails, is ripe. The owners asserted that as the owners, they alone have the authority “whether and how to maintain the legal trails that cross their property.” Slip op. at 2. Here are the details: the owners assert

sole and exclusive authority to decide whether and how to maintain the legal trails that cross their property. They alleged that the expected entry onto their property by volunteers seeking to exercise…

Continue Reading A Property Rights Advocate Is An Environmentalist Who Has Been Overregulated: Anti-Takings Advocate Argues For The Right To Exclude

If you ever wanted a primer on the sometimes-confusing and seemingly arcane world of Rails-to-Trails takings cases, you would be hard-pressed to find a better example of the substantive law and the procedures in these cases than the Court of Federal Claims opinion in Nicholson v. United States , No. 23-843 (Mar. 13, 2024).

There’s nothing particularly outrageous about this case, but that’s one of the reasons why we appreciate the time that Judge Tapp put into the opinion (and the effort our colleagues Lindsay Brinton and Meghan Largent put into the case). 

Here’s how the opinion starts off:

“There is a pleasure in the pathless woods[.]” Yet for the Hyatt and Nicholson Plaintiffs (collectively referred to as “Plaintiffs”), that pleasure was replaced with the pain of usurped property rights. Tn its pursuit of public amenities, the United States transformed Plaintiffs’ land previously burdened by an unused railway into a…

Continue Reading A CFC Primer On Rails-to-Trails Takings

ALI-CLE brochure cover page

When it comes to the longstanding ALI-CLE American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conferences, we’re always ready to go. You know that. But this year’s version — the 41st — was buzzing like no other in recent memory.

Maybe it was the New Orleans venue with its atmo, food, and music for our after-class activities, or even the timing (the second-to-last week on the Mardi Gras parade season, and our conference hotel was right on the routes). It might have been the nice weather (oh, it rained buckets one evening, but there wasn’t an ice storm like we experienced in Austin in 2023). Or maybe it was the capacity crowd, and new topics and speakers on the agenda. Or maybe it was just the prospect of seeing our friends and colleagues again after a year.

Here’s a photo essay of some of the Conference highlights.

And…

Continue Reading Pass A Good Time: Our Report From The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

Don’t miss out!

We promise: this is the last time we’re going to try to entice you to the upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference in New Orleans. We are getting close to capacity, but there is still room. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin last year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that.

Continue Reading No FOMO: There’s Still Room For You To Join Us In New Orleans Feb 1-3, 2024 For The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference

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