A Farewell to Raisins

We just read Robert Thomas’ essay summing up in detail the Horne case again on his blog www.inversecondemnation.com July 21, 2015, and we recommend it highly. See Horne v. USDA: Way More Than Silly Raisin Jokes. We surmise that this will be the backbone of a paper that Mr. Roberts will present at the next ALI-CLE Eminent Domain Program which you should attend on general principles if you practice in this field of law.

The whole essay  is very good, but we note with particular interest Mr. Thomas’ detailed dissection of Justice Breyer’s dissent. The Justice is supposed to be a gonzer khokhem — the real smarty on the Supreme Court — but, alas, in this case he doesn’t seem to understand the basic point of eminent domain law that differentiates between (a) the question of whether a taking has occurred and (b) if so, how to calculate the resulting just compensation that is due. Sort of like the difference between liability and damages in tort law. Anyway, Horne dealt only with part (a) — liability.

Thus, in virtually every part-take eminent domain case, where the taking is established or conceded, the questions that are addressed are: the value of the part taken, the amount of severance damages to the remaining property, and the amount of special benefits conferred on the property that remains in the condemnee-owner’s ownership after the taking. You then offset the benefits against the severance damages, add the net severance damages,* if any, to the value of the part taken and, voila! — just compensation.

In other words, there have been cases in which there have been takings (either conceded or readily demonstrable) in which no compensation was due. In California, the second Tobriner case (partial taking but no damages proven  — long story), and the Ricards case (nominal damages only even though there was taking of access but no damages established.)

So we are baffled why anyone with the smarts of Justice Breyer insisted on putting the cart before the horse by demanding that the amount of damages be determined, and used as a determinant of whether a taking occurred — which in this case could not be in issue because the feds pulled up in trucks at Mr. Horne’s farm and demanded that he physically load ’em up with his some $400,000 worth of his raisins without compensation. If that isn’t a taking, what is?

So our point is that ideology-based judicial result-orientation can be thicker than legal doctrine, and, indeed common sense.


*   Actually, there are variations in this formula, like the before-and-after approach that deducts the property’s “after” value from its “before” value to arrive at just compensation, but we won’t get into all that because our point remains the same no matter which valuation method you use.

This post was edited on 7/27/15


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