Timeline for Can the federal government class action an Eminent Domain lawsuit?
Current License: CC BY-SA 3.0
11 events
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| Mar 6, 2017 at 19:18 | comment | added | Cos Callis | oh, and Leo Sheep Co. v. United States isn't really on point as the court held that the governments claim of an easement did not apply here. The decision lends little if any light to the nature of what is an easement, only what is not. | |
| Mar 6, 2017 at 19:15 | comment | added | Cos Callis | An easement is the taking of a privilege but not the property per se. When my home backed up to a major thoroughfare with a broad easement, upon which an electrical tower was located the city and the utility company had the right to move freely through there and I was disallowed from placing a permanent structure on that ground but was responsible for maintaining the grass in good order. I could park a car, boat or RV on that ground (something easily movable)...so did they 'take' the land? No. Did they take some of my right to quiet enjoyment? Yes... so it's semantics at that point. | |
| Mar 6, 2017 at 18:50 | comment | added | ohwilleke | An easement still constitutes a taking, as does any permanent construction on the land. And, rancher/farmers are generally for profit businesses that want to get a fair return for their land like anyone else, also some easements are more intrusive than others. The dollar value of an easement is generally less than a taking of a complete ownership interest, but it can still constitute a taking and still requires an eminent domain proceeding. See Leo Sheep Co. v. United States, 99 S.Ct. 1403, 440 U.S. 668, 59 L.Ed.2d 677 (1979). History says ranchers did litigate in identical circumstances. | |
| Mar 6, 2017 at 13:42 | comment | added | Cos Callis | @ohwilleke, The result of a easement is that the landowner remains "the owner" of the land and is responsible for its upkeep but may also make some use of that land. If a homeowner has a plot of land that would be rendered unusable either after the wall is built or even during construction then condemnation under ED would be appropriate. A rancher/farmer who owns significant land holdings, for whom the wall would only take up a small fraction of their land, is more likely to grant an easement, so that he may continue to graze cattle/grow crops right up to the wall once construction is done | |
| Mar 6, 2017 at 13:19 | comment | added | Cos Callis | @BenCooper We are splitting technical hairs here, but it is sometimes important to do. If a landowner wishes to challenge the 'public use' (per Kelo) and the state can show, with great deference, that it is a public use (highways etc..) then the action will (most commonly) be dismissed without trial. Indeed it is rare for any ED action to actually make it to trial as the court will attempt to guide the parties into arbitration. But if, the prima facia case for 'public use' is not born by the land owner the matter will not (usually) make it any further. | |
| Mar 6, 2017 at 5:33 | comment | added | Ben Cooper | You are absolutely incorrect that the only thing that may be questioned is the price. To quote the 5th amendment: "nor shall private property be taken for public use, without just compensation". The "just compensation" may be questioned as can the "public use" part. Traditionally the judicial branch has shown great deference to the executive on if something is in the public interest. However, you can't mention Kelo and then say the government can't judge over public interest. The two are intertwined | |
| Mar 5, 2017 at 5:25 | comment | added | ohwilleke | An easement is a form of taking and the land you are actually building the wall upon probably requires a total taking of a fee (i.e. complete) ownership interest. | |
| Mar 5, 2017 at 3:03 | comment | added | Cos Callis | @gbroiles, You are miss-reading a poorly written article that does not represent what the law is, but rather what the author thinks it should be. Rule 23 has never been applied or litigated and is fraught with perils in application. Most importantly it does not, at all, address the central point that I make...to be certified as a class the members of the CLASS must petition the court, "Let us be a class" and be certified as such. OP's question poses quite the opposite scenario, it asks if the government, in it's (supposed) necessity to exercise ED can MAKE the land owners into a class. | |
| Mar 5, 2017 at 1:34 | comment | added | gbroiles | I think the initial statement is a little too strong - FRCP 23 clearly envisions defendant class actions - "One or more members of a class may sue or be sued . . if: . . . (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class" (emphasis added). Defendant class actions are not common but are also not unheard of - see law.du.edu/documents/denver-university-law-review/v88-1/… for law review discussion of same. Individual defendants could opt out of the class action, so participation isn't mandatory. | |
| Mar 4, 2017 at 14:47 | review | First posts | |||
| Mar 4, 2017 at 14:58 | |||||
| Mar 4, 2017 at 14:47 | history | answered | Cos Callis | CC BY-SA 3.0 |