Here's a case in which the court ruled there wasn't a taking, but it could be argued that the property owners won. How so? Because this case pitted the property rights of railroads against the property rights of the owners over whose land the rail lines run.
The U.S. Court of Appeals asked the Louisiana Supreme Court to answer this certified question:
Whether the application of LA. REV. STAT. § 48:394 to any of the properties in this case amounts to an unconstitutional taking of private property without a public purpose, in violation of Article I, Section 4 of the Louisiana Constitution.In Faulk v. Union Pacific Railroad Co., No. 2014-CQ-1598 (June 30, 2015), the Supreme Court answered no.
The case arose in 2007 after the railroad planned to close 100-year old private crossings over its tracks, which the property owners asserted disrupted their farming operations and their ability to access their land on both sides of the tracks. They sued in Louisiana state court, seeking among other things, an injunction prohibiting the railroad from closing the crossings. The railroad removed to federal court. The railroad counterclaimed, seeking a declaration that it could close the crossings, and an injunction prohibiting the plaintiffs from interfering.
After the lawsuit was filed, the Louisiana legislature adopted the statute noted above, which required railroads planning on closing private crossings to give the state PUC and affected property owners advance written notice. It is then up to the PUC to determine whether the crossing can be closed. The statute became operative in August 2008.
The district court ruled for the railroad on the claims of some plaintiffs, but also concluded that the railroad had no right to close any crossings after the effective date of the statute unless it followed the statutory process. The court rejected the railroad's claims that the statute was unconstitutional.
On appeal to the Fifth Circuit, it held the district court should not have reached the takings claim because the railroad had not established a record to show that it owned anything. The case was remanded to develop that record. Returning to the district court, the parties agreed that the railroad owned a property interest, even though they didn't agree precisely what that interest was. The railroad asserted it owned the fee, while the plaintiffs claimed it was only a "servitude." The district court agreed with the plaintiffs.
The district court certified the takings question (both state and federal) to the Fifth Circuit, which, after concluding that the railroad had waived its federal takings claims by failing to brief them earlier, in turn certified the state law takings question to the Louisiana Supreme Court.
The railroad argued the statute prevented closure or removal of private crossings and was a taking under Louisiana's rules for inverse condemnation under which the court must:
(1) determine if a recognized species of property right has been affected; (2) if it is determined that property is involved, decide whether the property has been taken or damaged in a constitutional sense; ;and (3) determine whether the taking or damaging is for a public purpose under Article I, Section 4.Slip op. at 10 (citing Avenal v. State, 886 So.2d 1085, 1104 (La. 2004). Applying the test and detailing Louisiana's civil property law, the court held there wasn't a taking because the grants to the railroads by the property owners' "ancestors in title" was only the right for the railroad to use the land together with the landowner. It was not a fee simple grant, nor a grant of exclusive use to the railroad. And here's the interesting part:
Union Pacific's attempt to gain exclusive use of the land burdened by its servitude (by contending that requiring it to leave in place the private railroad crossings, which have been in place for decades for the plaintiff/landowners' use, is a “taking”) turns the constitutional “taking” law on its head. To deny the plaintiff/landowners the simple right to cross over the tracks to reach the remainder of their property when there are no trains on the tracks (in other words, when Union Pacific is not using its right of use servitude) would change the nature of the right Union Pacific possesses from mere use to something more closely resembling ownership. If Union Pacific obtains what it seeks -- exclusive use of the property – it, not the plaintiff/landowners, seemingly will have accomplished an inverse condemnation, not having complied with expropriation procedures, and there is no indication that “just compensation” was paid to the plaintiff/landowners “to the full extent of [their] loss,” as required by LSA-Const. Art. I, § 4.Slip op.at 21.
Nor was it a temporary physical taking of the railroad's property, because the statute is only a reasonable restriction on use. And railroads are already a highly regulated industry, subject to tight PUC rules. The court also concluded that the statute applied retroactively.
Finally, it concluded that the railroad's takings claim was not ripe, because it had not submitted the matters to the PUC, which might allow the crossings to be closed.
Faulk v. Union Pacific Railroad Co., No. 2014-CQ-1598 (La. June 30, 2015)
