As you can see, after a couple of weeks of cyber-misadventures, that inexplicably substituted some other completely unrelated blog for Gideonstrumpet.info, we are back on line.

All appears to be well now. Stand by.

An acquaintance sent us a copy of a judgment which discloses that on a condemnor’s deposit of $335,287, a Louisiana trial court awarded $1,397,500, plus interest on the $1,o62,213 difference. The County of Concordia, or the parish as they call it over there, vows to appeal.

Biglane v. Board of Commissioners, Docket No. 44712-B, judgment filed on April 25, 2017.

In the words of the late Jimmy Durante, “Everybody wants to get into the act!”

The cigar company says that the “Eminent Domain” is a CBD-infused vape cigar combo and is being released in a single 6 x 50 toro vitola, priced at $9.50 per cigar and packed in 10 count boxes. The company made the project in partnership with Royal CBD (what seems to be a company selling CBD e-liquids, but not cigars) and  is not disclosing the blend of the cigar, other than to say that the wrapper is a “rustic habano” and that it is a medium bodied cigar with CBD.

We are pleased to note that the winner of the 2017 Brigham-Kanner property rights prize awarded annually by the William & Mary law school in Williamsburg, Virginia, is Professor David Callies of the University of Hawaii law school.

The Brigham-Kanner prize is awarded to individuals with an outstanding record of achievement in the field of property rights.

When I argued the regulatory taking case of Agins v. City of Tiburon, back in 1980, it was the considered opinion of knowledgeable observers that the members of the court (with the possible exception of Justice Potter Stewart) simply didn’t understand  what the case was all about. Though they ultimately ducked the tendered issue of remedies on ripeness grounds, they evidently thought that the controversy before them had to do with deprivations of property without due process of law — not regulatory takings. And adding insult to injury, their eventual ripeness decision contradicted a earlier holding in Euclid v. Ambler without mentioning it, even though it was explicitly brought to their attention. In short, it was a mess which the court eventually had to overrule (in Lingle v. Chevron where they also explained how they were confused by arguments of the US Solicitor General).

Now, over 30 years later, after checking out the intellectual disaster that unfolded before the Supreme Court this week in the form of the oral argument in Murr v. Wisconsin (the latest regulatory taking case to come before the court on the merits), one is left to wonder if things have improved in terms of the Justices’ understanding of this field of law.

The issue in Murr  v. Wisconsin seemed simple, but you must not underestimate their Lordships’ capacity for confusing things in takings cases. The question this week was: where the Murr family owned two adjacent, separately taxed lots, bought at different times; one built out with their family home, and the other one vacant, was it permissible for the local land-use regulators to treat both lots as one, and then take the position that therefore being forbidden to build anything on the vacant lot was not its regulatory taking. The lower court used the absurd Penn Central assertion that “takings jurisprudence” does not divide a parcel into segments,* so a regulatory taking of some of it is no taking, and carried it to a reductio ad absurdum conclusion that even if the taken part is a legal, separately taxed lot complying with local zoning, and it is deprived of all utility by local regulations — which would be a total taking under the Lucas case if that lot were standing alone — is no taking at all. In other words, the Wisconsin courts thought that when the taken ground is adjacent to the owners’ other land, what would otherwise be a taking, isn’t. Got it? If you don’t, please don’t feel bad about it, for as Justice Stevens put it: “even the wisest of lawyers would have to acknowledge  great uncertainty about the scope of this Court’s takings jurisprudence.”

So in Murr, the Justices got all tangled up in an issue of direct, not inverse, condemnation law, having to do with what constitutes a “larger parcel” in a partial direct taking of a part of the condemnees’ property, where liability for a taking is conceded and the only question is whether severance damages are payable — whether the two parcels in question are so intertwined by use and title, that the taking of one damages the other, requiring payment of severance damages. For an example of that sort of case see City of San Diego v. Neumann, 6 Cal.4th 1 (1993). What that could possibly have to do with the question of whether a high degree of regulatory interference with the use of a vacant parcel amounts to its taking — is an entirely different subject.

If you want an explanatory insight into the intellectual chaos the oral argument in this case represented, please go to www.inversecondemnation.com , the premier blog on takings law, run by our colleague Robert H. Thomas who is an experienced appellate lawyer in this field, and is both knowledgeable about the law and candid in assessing judicial handiwork. Check out his blog post of 3/21/2017 entitled Affirmed By an Equally Confused Court? Some Thoughts on the Oral Argument in the “Larger Parcel Case.” http://www.inversecondemnation.com/inversecondemnation/2017/03/affirmed-by-an-equally-confused-court-some-thoughts-on-the-oral-arguments-in-the-larger-parcel-case.html

We refrain from duplicating his effort here because we doubt that we could improve on his work in this case, meticulously dissecting the absurdities uttered by the Justices — you just have to read ’em for yourself. By the way, Justice Thomas, as is his wont, prudently kept quiet so we cannot say what was on his mind.

Bottom line: While takings law has improved a bit in the past decade (albeit in easy cases where the taking was obvious), the Murr disaster suggests that we a are not yet out of the judicially-created intellectual woods. As the late, great Arvo Van Alstyne, California’s leading expert on government liability put it way back in 1970:

“Judicial efforts to chart a usable test for determining when police power measures impose constitutionally compensable losses, have on the whole, been notably unsuccessful.  With some exceptions, the decisional law is  largely characterized by  confusing and incompatible results, often explained in conclusionary terminology, circular reasoning , and empty rhetoric.”**

Looks like things haven’t changed all that much.

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*Penn Central made that statement by naked assertion out of the blue, without citation of any supporting legal doctrine, authority or explanation. Actually, most federal takings have been of easements which are quitessentially partial takings, qualitatively and quantitatively. If you want to explore Penn Central’s many absurdities, we immodestly recommend our article, Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill of Rights Jour. 679 (2005).

For the real state of the law on this point see United States v. Grizzard 219 U.S. 180 (1911).

** Arvo Van Alstyne, Taking or Damaging by Police Power, 44 So. Cal. L. Rev. 1, 2 (1970).

When President Trump spoke of his planned border fence during the presidential campaign, virtually all of the media discussion concentrated on the political or international aspects of it. But those of us who are familiar with government projects that require construction of almost anything, understood that such a project would require lots of land acquisition for the fence right of way, and that, in turn, would mean lots of eminent domain cases along the border.

Now that Trump is in office, all that is coming to pass. We recommend that you read a recent on-line article in the Houston Public Media — John Burell, Landowners Likely to Bring More Lawsuits as Trump Moves on Border Wall, February 26, 2017.

http://www.houstonpublicmedia.org/articles/news/2017/02/26/189384/landowners-likely-to-bring-more-lawsuits-as-trump-moves-on-border-wall/

This means lots of small cases involving fractions of an acre for the fence right of way, and compensation in the low five figures in each case (a median of $12.6 thousand per case), but there is one case involving the taking of eight acres, and compensation of $1.1 million. The owner of that one is the National Conservancy — no jokes, please. Altogether, there are 320 such cases pending, but many more are expected.

The feelings among condemnees differ widely. Some resent the takings of their ancestral lands and would rather hang on to them, while others are glad that the fence will stop the stream of trespassing illegal aliens crossing the border and wending their way across their back yards as they trek north. Most of the pollos  — those sneaking across the border — may be nice folks who only seek a better life for themselves and their families, but some are not. Moreover, the coyotes, the ones who guide them the pollos across the forbidding and often dangerous desert terrain are not nice folks. They tend to be armed, some toting AK-47s.

But be that as it may, many more additional small eminent domain cases are expected to be filed by the feds, thus providong gainful employment to the local bar.

For earlier reports on this topic, notably the problems that ensue when the fence cuts off a bit of American land and leaves it on the Mexican side of the border, see Richard Marosi, L.A. Times, Fencing Off Forbidding Land, February 15, 2010, at p. AA1). For the Huffington Post’s take on the problems with these federal land acquisitions (such as undercompensation), click on http://www.huffingtonpost.com/2012/10/15/landowners-seized-border-properties_n_1966636.html

By the way, the author of this Houston Public Media article does not appear to understand that in these direct condemnation (or eminent domain) cases, the land owners do not sue the government. Rather, it’s the other way around, the government sues them by filing actions in eminent domain, and follows the dumb federal practice of purporting to sue the land (e.g., United States v. 0.6 Acres). Go figure. If you are interested in details, the Houston Public Media folks have been kind enough to include a link to some 300  such cases that have already been filed. You can peruse the list at https://docs.google.com/spreadsheets/d/1jkuxoIUetKQ_enRoO2cnww7rfs6nivd2LLAsxpUyHB0/edit#gid=1466917367

Follow up: You won’t believe this, folks, but LexisNexis on line has a Professor, no less, who claims that the feds won’t be able to build the border wall because negotiating with condemnees will take so long, and since — avers the prof — the feds will have to litigate value and pay the condemnees first, before they can build, it’ll take forever, etc., etc., etc.

Looks like the prof never heard of the Declaration of Taking Act, or of the rule that the feds need not pay first before taking the subject property. To say nothing of the cost of litigation that such landowners would have to bear while all that litigation goes on.

Second follow up: the word comes that the feds — evidently unimpressed by the professors’ views — are serving declarations of taking on the affected landowners whose properties are in the path of the fence. https://archpaper.com/2017/03/department-of-homeland-security-land-texas/

Here is an interesting article on how eminent domain is viewed in Jewish religious law, not Israeli secular law. If you are interested in the latter, there is a book on the subject, Yifat Holzman-Gazit, LAND EXPROPRIATION IN ISRAEL (2007) ISBN 9-780-7546-2543-8.

Much of this article is based on the Bible. Unfortunately, it misses what in our opinion is the most important biblical story of eminent domain: King David’s acquisition of the site for the Ark of the Covenant, which just happened to be Ornan’s threshing floor. See I Chronicles 21:18-26.

We do not vouch for the accuracy of this article, but it seems to us that our readers with an interest in the law of eminent domain may find this of interest

Anyway, here is the article in question:

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Eminent Domain in Jewish Law

Can the government take private property?

By Yehuda Shurpin

Eminent domain traditionally refers to the power of a state or a national government to take private property for public use. However, in the controversial 2005 U.S. Supreme Court case known as Kelo v. New London, the court ruled that the power of eminent domain extends to the transfer of land from one private owner to another private owner for the sake of furthering economic development.

So what’s the Jewish take on these two interpretations of eminent domain?

(As a disclaimer, according to Jewish law, one is generally obligated to adhere to “just” civil laws of the land one resides in.1 It is nevertheless insightful to understand the Jewish perspective on this topic.)

Let’s start with the classic definition of eminent domain, which is first mentioned in the Book of Samuel.

Eminent Domain in the Bible

When the Jews first approached the prophet Samuel asking for a king, he warned them:

“This will be the manner of the king who will reign over you; he will take your sons, and appoint them to him for his chariots and for his horsemen . . . And he will take the best of your fields, your vineyards, and your olive trees . . .2

Samuel foresaw eminent domain as being part of the modus operandi of a Jewish king and his government. In the words of Maimonides:

[A king] may take fields, olive groves, and vineyards for his servants when they go to war, and allow them to commandeer these places if they have no source of nurture other than them. He must pay for what is taken.3

Maimonides continues in a related law that not only can the king take the fields for food, he can run a highway through them:

The king may burst through the fences surrounding fields or vineyards to make a road, and no one can take issue with him. There is no limit to the road the king may make. Rather, it may be as wide as necessary. He need not make his road crooked because of an individual’s vineyard or field. Rather, he may proceed on a straight path and carry out his war.4

Clearly, Jewish law recognizes the concept of eminent domain. But what are its parameters? And does Jewish law condone the seizure of private property in order to transfer it to another private entity, merely to further economic development?

For the answers to these questions, we turn to an episode that happened several generations after Samuel’s time.

King Ahab and the Vineyards of Naboth

Adjoining the palace in Jezreel that belonged to King Ahab (a ruler of the breakaway Northern Kingdom) was a beautiful vineyard belonging to a man named Naboth. One day, Ahab asked Naboth to sell him the vineyard because it was very close to the palace, and he wanted to use the land as a vegetable garden. But Naboth refused to give up his property for any amount of money, or even for better land elsewhere. Seeing that her husband was upset over the vineyard, Queen Jezebel arranged for Naboth to be killed.

When King Ahab went into his ill-gotten vineyard. he was confronted by the prophet Elijah, who proclaimed, “Have you murdered and taken possession also? Thus says G‑d: ‘In the place where dogs licked the blood of Naboth, shall the dogs lick your blood . . . And Jezebel also shall be eaten by the dogs in Jezreel.’ “5

As the commentaries point out, based on the established law of eminent domain, it was seemingly King Ahab’s right to take Naboth’s vineyard. And by refusing to give it, Naboth was rebelling against King Ahab and deserved death. So where did King Ahab go wrong? Let’s analyze this episode to determine the limitations of eminent domain according to Jewish law.

Only for Servants and National Security

As stressed by Maimonides in his Laws of Kings, eminent domain only applies to taking the property and giving it to the king’s armies or servants for national security purposes. Hence, it would not apply to Naboth’s vineyard.6

Fair Compensation

Ahab offered Naboth compensation—was that necessary? Some commentaries hold that it wasn’t, so once Naboth was offered compensation, he was under the impression that he had a choice. (Thus, his refusing was not an act of rebelliousness and didn’t deserve death.)7 Maimonides, however, rules that according to Jewish law, one must be compensated with the fair market value of his property.8

Further Limitations

There are additional limitations that some commentaries suggest, but that aren’t necessarily codified in Jewish law. Some explain that the right of eminent domain only applies to land acquired by the individual, but not ancestral land (as was the case of Naboth).9 Others say that the king only has a right to the fruits, but not actual land.10 Yet others posit that this right of eminent domain only applies to a king who rules over all of Israel, not a breakaway kingdom like that of King Ahab.11 12

[Comparison With] The Kelo Case

Although there is much discussion as to the exact parameters of eminent domain in Jewish law, it is clear that it would not extend to taking the land and transferring it to another private individual merely for economic development.

The King’s Highway

Chassidism teaches a profound lesson from the law of the king’s highway. In a sense, we are all part of G‑d’s army, enlisted to fight the powers of darkness and evil with light. Nothing can stand in the way of our march forward, and we need not make our road “crooked” just because of a “vineyard or field.” Rather, we may proceed on a straight path and carry out our mission in this world.13 And with G‑d’s help, we will succeed!

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Footnotes

1. Talmud Gittin 10b, Nedarim 28a.

2. I Samuel 8:11-15.

3. Maimonides, Laws of Kings 4:6.

4. Maimonides, Laws of Kings 5:3.

5. For more on this, see I Kings, ch. 21.

6. See Radbaz on Maimonides, Laws of Kings 4:6; See however Lechem Mishnah on Laws of Kings 5:3 that Rashi on Talmud Sanhedrin 20b seems to imply that it can be taken for other reasons as well, not only national security.

7. See Zohar, vol. I, 192b; Tosfot on Talmud, Sanhedrin 20b,

8. Maimonides, Laws of Kings 4:6.

9. Tosafot on Talmud, Sanhedrin 20b.

10. See Radak on I Kings 21:10; Lechem Mishnah on Maimonides, Laws of Kings 4:6.

11. Tosafot on Talmud, Sanhedrin 20b.

12. Zohar, vol. I, 192b, explains that in truth there was nothing wrong with King Ahab taking the field; the issue was that Naboth was killed without a proper hearing.

13.  See for example Likkutei Sichot vol. 18 p. 36.

No comment appears necessary.

From today’s (1/14/17) on-line summary of news by the Los Angeles Times:

 “More troubling news about California’s bullet train. The project could cost taxpayers 50% more than estimated — as much as $3.6 billion more. And that’s just for the first 118 miles through the Central Valley, which was supposed to be the easiest part of the route between Los Angeles and San Francisco. A federal document outlines far-reaching management problems: significant delays in environmental planning, lags in processing invoices for federal grants and continuing failures to acquire needed property. Los Angeles Times (emphasis in the original).”

Click on the link for the entire article.

Do you know who Richatd Adams was? He was the author of the huge 1972 bestseller Watership Down. He recently passed away at 96 in England, where he lived. Though not relevant to our chosen subject of eminent domain and land use law, this event bears noting because Adams’ subject was and remains a gigantic achievement in clear thinking, and sound governance, even if was cast in the form of an allegorical tale about a band of rabbits facing the destruction of their community.

 We will let the New York Times tell the story:

• “Facing the destruction of their underground warren by a housing development, a small party of yearling bucks led by a venturesome rabbit named Hazel flees in search of a new home. They encounter human beings with machines and poisons, snarling dogs and a large colony of rabbits who have surrendered their freedoms for security under a tyrannical oversize rabbit, General Woundwort.
• “It was a timeless allegory of freedom, ethics and human nature. Beyond powers of speech and intellect, Mr. Adams imbued his rabbits with trembling fears, clownish wit, daring, a folklore of proverbs and poetry, and a language called Lapine, complete with a glossary: “silflay” (going up to feed), “hraka” (droppings), “tharn” (frozen by fear), “elil” (enemies).
• “The pioneers realize that founding a new warren is meaningless without mates and offspring. With a sea gull and a mouse for allies, they raid Woundwort’s stronghold, spirit away some of his captive does and confront his forces in a pitched battle in defense of their new warren on Watership Down.”

If you can find a copy of Watership Down, read it and ponder its lesson