Category: Uncategorized

Wish We Had Said That

Checking out our colleague Robert Thomas’ blog of today, ( ), we came across this gem in his explanation of the — alas, unpublished — ripeness ruling of the 4th Circuit decision in Clayland Farm Enterprises v. Talbot County (4th Cir.) Docket No. 15-1755 (Dec. 2, 2016), holding that a government entity who removed an inverse condemnation case from state court to federal court, would not be heard to argue that the case should have been pursued in state court. Quoth Roberts:

“When the government removes [an inverse condemnation] case [from state] to federal court, it shouldn’t get any traction with an argument based on the notion that the claim should [] have been brought in [state court, not in] federal court and thus isn’t ripe — the law may be an ass sometimes, but it’s not so nuts as to accept an argument that would make Leo Rosten [*] blush.”

Now, if we could only see similar blunt candor in opinions of the federal courts being asked to make similar rulings, that would be nice.


*Leo Rosten was the author of THE JOYS OF YIDDISH, a very funny lexicon-style book of Yiddish expressions, many of which have become a part of colloquial American English. Thomas was evidently referring to Rosten’s famous definition of chutzpah as the attitude of a criminal defendant who, having killed both his parents, threw himself on the mercy of the courts because he was an orphan.

Roger Sullivan, R.I.P. — A War Story

Word has reached us a couple of days ago that Roger M. Sullivan, Esq., a great California condemnation lawyer, passed away at the age of 90.

There is an extensive obituary of Roger in today’s Los Angeles Times (12/5/16, at p. B5.). Check it out. We recommend you read it because, among other things, it will tell you about Roger the man.

As for us, we contribute this war story about Roger the professional.

Few people know it, but it was Roger who, professionally speaking, put me on the map. Back in 1968, I lost Lombardy v. Peter Kiewit Sons’ Co. (1968) 266 Cal.App.2d 616). It was an inverse condemnation case involving proximity damages to my clients’ home from a steep upward freeway ramp. It was heavily used by large, heavy trucks, so to ascend the grade they had to downshift into lower gears, producing a high level of noise, seriously interfering with the use and enjoyment of the home.

Alas, we were demurred out of court, and the Court of Appeal affirmed, holding that (a) the state was immune to actions for nuisance, and (b) that state violation of restrictive covenants (CC & Rs) was non-compensable. The Supreme Court denied hearing, and it appeared that that was that. Except, thanks to Roger, it wasn’t.

Some time later, in 1971, as I recall, I got a call from Roger. He had read the wretched Lombardy case, and got intrigued by it to the extent of digging up and reading our briefs. They impressed him sufficiently to inspire him to call me and to ask: “I just read your Lombardy briefs. Would you like to try again?” Would I?! Surely you jest by asking. Long story short, Roger turned the file over to us, and away we went. Since our submission required a change in the decisional law, this was a case suitable for the California Supreme Court which would have to overrule its own 1909 precedent to give the nod to our client.

So off we went, predictably losing at the trial court and court of appeal level. But miracle of miracles, the California Supreme Court granted hearing and the rest became history in short order. See Southern Cal. Edison Co. v. Bourgerie (1973) 9 Cal.3d 169. And guess what? The court reexamined it earlier ruling, concluded that it had been in error (and out of step with the decisional law of other states), and overruled its own precedent as well as Lombardy on the point of compensability of CC & Rs.

And so, I wound up the winner in a precedent-breaking and precedent-making case. And I owe it to Roger who saw in my work a potential that the Lombardy judges failed to note. For that I have been grateful to him for the rest of my career. The professional compliments bestowed on me by that referral don’t come higher than that.

So thank you again, Roger. Rest in peace.

PS — But, you ask,  what about that second Lombardy holding, the one that government is immune to suits for nuisance? Actually, we got that one overruled too in Nestle v. City of Santa Monica (1972) 6 Cal.3d 920. Michael M. Berger (who handled just about every airport case before the California Supreme Court)* did most of the briefing and your faithful servant argued it before that court.

So the moral of this war story is that when your litigational ship sails, leaving you standing on the dock, that isn’t necessarily the end of it.


* To get a better idea of his accomplishments in that field, see 4 Brigham-Kanner Property Rights Jour. at 3-11 (2015)

Happy Thanksgiving!

Not much to say, except to re-emphasize, if any additional emphasis were needed, that we have much to be thankful for, and even if you are one of those folks who think that the just past election was a calamity, it was a free election of a free people choosing their leadership. Don’t forget that!

And if you have any foolish doubts on that score, remember that all the truly unhappy people in the world want to abandon wherever they are and come here — not the other way around.

So enjoy your turkey and have a very happy Thanksgiving

And Now, For a Word From the Prophet

It’s been a few months since we ventured out of our eminent domain/land use law corner of the legal world, and into the never-never land of politics. We did not support or oppose either candidate, but we did try our best to confront the tidal wave of ideological bullshit sweeping over us, and to explain why Trump was doing so well. Our intention was to clarify why the people were so strongly — and as it turned out, overwhelmingly — in favor of Donald Trump’s presidential candidacy. Whether you like him or not, it was clear to us that in his angry rhetoric railing against the political establishment on both sides, he was on to something and whatever that “something” was — it resonated mightily with the people who were getting sick and tired of (a) getting screwed by the political establishment, and (b) being lied to about it.

We endorsed no one in that article, but we did our best to explain — correctly, as it turned out — why Trump’s crude, in-your-face, aggressively hostile electioneering rhetoric was resonating with the non-establishment people.

So if you missed our article, here it is, and if you read it already, it won’t hurt you to read it again in light of yesterday’s presidential election results. Go to


City to the Times: Do We Really Own All that Land? Gosh. Who Knew?

Here we go again, folks. Way back in the 1960s, the California Supreme Court gave its blessings to condemnors engaging in “excess condemnation” — i.e., the takings of more land than the condemnor’s own project plans called for. See People v. Superior Court (Rodoni) (1968). There the court concluded by a 5 to 2 majority that it was OK for the state to take over 50 acres of land out of Roy Rodoni’s farm for what its own plans required as a 5-acre right-of-way segment. Why would the state do a damn fool thing like that, you ask? Because, as they told the California Supreme Court, it would save money. How? Their explanation was that by taking the entire farm they wouldn’t have to pay severance damages for the taking of only those 5 acres. This was, of course, ridiculous, because the taking of the entire 50-plus acre larger parcel would require payment of 100% of its value — the maximum. So how could the state save money by paying the maximum? But hey man, it was California in the heyday of its supreme court’s belief that a condemnor could do no wrong, so the court largely went along with the gag, and allowed the state to proceed.

Why the majority of the California Supreme Court bought that absurdity, remains a mystery.

To their credit, Justices Mosk and Peters dissented, pointing out not only the arithmetical absurdity inherent in the state’s position, but also taking note of the fact that the state conceded that it had been using threats of excess condemnation to extort favorable settlements.

However, we learned some time later that the California Little Hoover Commission examined the state’s “excess land” program and revealed that far from saving money on excess land, the state had acquired and was sitting on millions of dollars worth of land that it could neither use nor sell.

Now, we learn from the Los Angeles Times that a similar caper is going on in Los Angeles. Alice Walton and Ben Poston, L.A. Learns It Owns 9,000 Parcels, Oct. 28, 2016, at p. B1. According to the Times, the City Controller has done an investigation of the city’s land holdings and — surprise, surprise — discovered that the City holds some 9600 parcels of land (no indication of how that land was acquired) using a tracking system that is “incomplete, inadequate, outdated, in some cases incorrect.”

One of those “parcels” is a 17,500-acre tract of land that the city acquired back in the 1970s for a grandly named, but eventually failed “Intercontinental Airport” out in the boondocks in the high desert, near Palmdale, for which it paid over $100,000,000 — and that’s in 1970s dollars. (

And for a comic touch — in case you aren’t snickering already — in the latest caper, the city was surprised to learn that it owned inter alia a producing orange grove in Franklin Canyon, that is “surrounded by multimillion dollar homes.” Said a city functionary quoted by the Times: “I don’t know why the city is in the orange growing business,  but apparently we are.” However, we bet that those homeowners aren’t complaining. It isn’t every day that someone surrounds your multimillion dollar home in a posh neighborhood with a fragrant orange grove.

What is to happen to all that unused land for which the city paid a pretty penny out of your tax dollars, the Times tells us not. But be patient. Maybe some time in the future the city will think of something. Then again, it may not. So as we are fond of concluding some of our posts that deal with similarly daft government capers, your tax money at work.


Words Without Comment

A quote from Matthew Hennessey, Hartford’s Big Dig, Oct. 1, 2016:

“In Connecticut as in the rest of the country, massive interstate construction projects followed President Dwight Eisenhower’s signing of the Federal-Aid Highway Act of 1956. Cities like Hartford were then suffering massive traffic congestion problems, as rising postwar incomes spurred a boom in individual car ownership. In 1949, several major insurance companies asked the engineering firm Andrews and Clark to compile an “Arterial Plan for Hartford” under the direction of New Haven native Robert Moses. “Doctors, we are told, bury their mistakes, planners by the same token embalm theirs, and engineers inflict them on their children’s children,” wrote Moses in a cover letter. It was an oddly prophetic warning from a man blamed by many for ruining New York City with his car-dependent infrastructure projects.”

For the entire article go to

We might add, however, for the benefit of readers who are too young to remember these things, that the official justification for constructing the interstate highway network was defense: to facilitate military transportation in case of need. Tue, we have never seen (or heard of) Abrams tanks clanking down an Interstate, but, hey man, who are we to argues with our betters?

More Redevelopment Bad News — Washington, DC

If you keep track of takings for redevelopment, you may have come across news of Skyland, a major redevelopment project in Washington, DC, in the Southeast part thereof. It was supposed to be a big hotsy-totsy project anchored by Walmart, with the usual projections of a rosy future. Something like this:

The Skyland Town Center property is now in the hands of the development team.

But as is so often the case, things didn’t work out as hoped. Long story short, Walmart pulled out of the deal, and the project has so far, produced another one of those urban deserts that looks more like this:


And this is the good part. Much (most?) of the project area looks more like an urban desert; like this:

To be fair, the project promoters claim that they will build another, smaller project but whether and how they will actually do it remains to be seen, particularly since the economy appears something less than robust at the moment. This project has been pending for over 10 years, and if these pictures are any indication, there is not much to brag about here.

We will try to follow up on this story, but for some reason, it has not been covered to speak of in the major newspapers. And so it goes.

Another Not-So-Hot Redevelopment Project — Brooklyn

Remember the hulabaloo over the Atlantic Yards project? How it would revive Brooklyn, etc.? The latest dispatch from that front from the New York Times, no less, indicates that it hasn’t been beer and skittles. We will quote from the Times, and let its words speak for themselves,

“[A local] pizzeria sits in the shadow of the $4.9 billion megadevelopment once known as Atlantic Yards, which has promised to deliver thousands of new residents and visitors to the area since it was proposed in 2003. But so far, the biggest change . . . Vanderbilt Avenue merchants have seen is rising rent.”

“The project has been troubled by delays, financial setbacks, lawsuits, and political wrangling. And the opening of the Barclays Center, the centerpiece of the development, in 2012, did not deliver substantial new business to Vanderbilt despite expectations that it would.” Rhonda Kaysen, A Long Wait for New Neighbors on a Brooklyn Street, N.Y. Times, Aug. 31, 2016, at p. B5.

And so it goes. Predictably. As California Court of Appeal Justice, Macklin Fleming  once put it: redevelopment project promoters promise they’ll bake a bigger economic pie, with bigger slices for all. But what they often tend to produce is pie in the sky. Of course, the NY Times does the same by duly reporting that in the sweet bye and bye good things will happen. We will await the event and see how it turns out if we are still around then.

For the full NY Times article go to

Steven Hill, “Law and Order’s” Adam Schiff, R.I.P.

Every lawyer we know, and lots of non-lawyers, just loved the TV show “Law and Order” — it captured the lawyers’ decision-making process and the flavor of the courtroom, including the doings of both brilliant and wacky judges, like no other TV show ever did, with a generous soupcon of New York thrown in. The casting was brilliant and our favorite character of all time was the fictional Adam Schiff (actually named Steven Hill) playing the District Attorney of New York city. He was eventually replaced in that role, but none of his replacements succeeded in capturing the flavor, the geschmack that he brought to it. Fred Thompson, one of his replacements and another favorite of ours, came close but his earthy Southern charm (and drawl) somehow did not ring quite right in the context of his role as a successful New York politician/lawyer/legal strategist.

We just learned that Mr. Hill has passed away at the age of 94 — not bad.

We do not claim being a Feinschmecker of acting, but we know a little something about what goes on in courtrooms, and are of the opinion that Mr. Hill entertained us royally, and enriched our professional lives. We are unlikely to see his likes again.

R.I.P. Steve

Judge or Jury? — Revisited

As promised in our recent post on the California Supreme Court’s Perris v. Stamper case, here is a copy of our recent article on that case’s ruling on the subject of judge vs. jury issues, from the Daily Journal, California’s foremost legal newspaper. It ran on August 19th.

It turns out that on the right to a trial by jury, Americans have had it wrong in understanding the British rule that governs the right to a trial by jury in eminent domain cases, which governs under the Seventh Amendment. But the unsung hero turns out to be the late Lewis Orgel, author of VALUATION UNDER EMINENT DOMAIN (1953) who had it right all along. Here it is:


Daily Journal


August, 19, 2016

Our eminent right to a jury

By Gideon Kanner

California’s late chief justice, Roger Traynor, once wrote that there are notions embedded in the law that have never been cleaned and pressed and might disintegrate if they were. A case in point is a holding embedded in the brand new California Supreme Court decision in City of Perris v. Stamper, 2016 DJDAR 8382 (Aug. 15, 2016). It was one of those complicated decisions with something for everybody that dealt with the issue of when, if at all, the existence of a future land dedication requirement as a condition to development must be considered now in valuing condemned land subject to such a dedication or exaction requirement in the future. This may sound like technical stuff, but it can have a profound impact on the value of the taken land, and is thus of interest to lawyers as well as appraisers.

Much has already been said about this difficult legal problem, and I leave to others the plumbing of its complexities. I focus instead on the court’s prefatory decision holding that this problem is not a jury issue, but must rather be decided by the trial judge because “no such jury right existed in England and the colonies in 1791.”

Unfortunately, this rule is mythical; eminent domain cases were triable to juries in Merry Old England in the 18th century, and therefore the American courts’ belief that they were not, is mistaken. This is important because the Seventh Amendment does not create a right to a trial by jury; it only preserves this right in cases where trial by jury was available at common law at the time the Bill of Rights was written. The Perris case cites a U.S. Supreme Court case as authority, but no British sources which, as it turns out, are to the contrary.

If you consult American eminent domain treatises, all you get is confusion. “Nichols on Eminent Domain,” Section 4.105 (Lexis/Nexis 2002) had it for years that there were no juries in British eminent domain cases. Its more recent editions contain a lengthy, confusing discussion that gets involved with sovereign immunity and such, but avoids a clear cut statement of the rule and its British basis. But the other authoritative eminent domain treatise, Orgel, “Valuation Under Eminent Domain,” Vol.2, Section 25, pp. 268-271 (Michie Co. 1953), states with no equivocation that that trial by jury was used in British eminent domain cases until 1919 when it was abolished by Parliament. Neither treatise cites any British sources supporting its position. Older editions of Nichols tried but failed. Nichols used to make a passing reference to Blackstone’s Commentaries, but cited the wrong part of Blackstone’s treatise (2 Blackstone 259), that says nothing that remotely bears on the subject. However, at 3 Blackstone 258-259, we learn that the “inquest of office” said by the old Nichols text to be the old British non-jury proceeding to acquire land, had nothing to do with eminent domain. It was a medieval procedure used to ascertain the king’s entitlement to land in cases of escheat, treason, intestacy, forfeiture and the like. More important, Blackstone makes clear that even these proceedings were triable to juries, except in cases of forfeiture for treason. “For it is a part of the liberties of England, and greatly for the safety of the subjects, that the king may not enter upon or seize any man’s possession upon bare surmises without the intervention of a jury.” (Emphasis added).

You need not take my word for any of this. You can skip the confusing ancient stuff that few people understand (as our courts have done) and consult the horse’s mouth in the form of the modern British Court of Appeal opinion in De Keyser’s Royal Hotel Ltd. v. The King (1919). There, their Lordships review pertinent legal history (1708 to 1798), and with the concurrence of all parties, including the British attorney general, conclude that “in default of agreement with the owners the true value [of the taken property] is to be ascertained by a jury.” So much for denying jury trials in English eminent domain cases.

British history also fails to support the belief that inverse condemnation cases were only the flip side of eminent domain, as American conventional wisdom has it. Indeed, if they were like British eminent domain cases, then on that logic alone they had to be triable to juries. But what about the notion that inverse condemnation is some newfangled American constitutional proceeding unknown to the common law, and that the government was shielded from it by sovereign immunity? Not really.

Until the mid-19th century most British eminent domain cases were filed by private “promoters” who, in each case, were authorized by Parliament to take private property for roads, railroads, canals, etc., upon payment of compensation to the taken land’s owners. But when promoters failed to pay or the parties could not agree on a price, British property owners could sue in tort using a writ of trespass, to recover damages. See the discussion in the De Keyser’s case. Like all other common law actions, these were triable to juries.

That is also the view of Professor Keith Davies, the leading authority on British eminent domain law (or “compulsory purchase” as the Brits put it), and the author of the foremost British treatise on the subject. Davies clarified things for us Colonials when he appeared as a guest lecturer and presented a paper titled “The Jury in Eminent Domain,” at the ALI-ABA Course on Eminent Domain and Land Valuation Litigation in 2001, relying inter alia on Baron de Bode’s Case (1845). This case dispenses with the sovereign immunity myth, by concluding with a court order that that a jury be convened and try Baron de Bode’s claim against the Queen of England wherever she then may be in the realm. In short, the notion that cases of determining compensation for takings of private property were not tried to juries in England is mistaken, and this is as true of direct as of inverse condemnation cases.

It is a bedrock constitutional principle and a part of the civic ethos of our country, that trial by jury is enshrined in the Bill of Rights for good reason: It is treasured as a fundamental guarantee of Americans’ freedoms that interposes the judgment of the community as a shield between the citizen and government excesses. Why then, when it comes to eminent domain, trial by jury is suddenly disfavored by judges as if some sort of pesky impediment to good governance, is obscure. The purpose of the Bill of Rights was to protect the people from the government, not the other way around, and juries provide that protection in eminent domain cases as well as in others, as correctly noted by Justice William Douglas in U.S. v. Reynolds, 397 U.S.14, 23-24 (1970).

Obviously, it is a tall order to ask the courts to reconsider a rule, even an erroneous one, that they have been repeating for over two centuries. But it seems to me that the intellectual integrity of the law, and a candid acknowledgment of historical truth are too important to let this legal dog lie. _____________________________________________________________

Gideon Kanner is Professor of Law Emeritus at the Loyola Law School in Los Angeles. He is former editor of Just Compensation, a monthly periodical on the law of eminent domain, and was a regular columnist on takings law for the National Law Journal. He was a visiting Professor at the University of Aberdeen, and a guest lecturer in several British universities, as well as a speaker and a recipient of a British Academy scholarship at the International Colloquium on Expropriation Law held in 1990 at Oxford University.