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Property II
University of Nebraska School of Law
Duncan, Richard F.

Wednesday, January 16, 2008
1:08 PM
·                 Introduction to Takings and Eminent Domain–from the Blog:
Let’s assume I own a nice piece of property, Blackacre, located near a large, new residential district in Lincoln. The City has decided it needs to build a new school for all the kids in this new subdivision, and my land is the perfect location for the new government school.
The City approaches me and offers to buy the land from me – I say “no thanks, it’s not for sale at any price.” That’s my right, isn’t it? It’s my land and I don’t have to sell it if I don’t wish to!
That’s one rule we could have – a pure property rights approach and the City will simply have to locate the school somewhere else.
Is that a good rule?
Here’s another possible rule – we could say that if the government needs my land for some public purpose it can simply take my land and it doesn’t even have to pay me. Public need controls over private greed. So the City of Lincoln can simply take my land and I have the satisfaction of knowing that many children will get to attend government school on Blackacre.
What do you think of this rule?
Suppose instead of a public school, General Motors wants the land to build a new factory? State condemns land pays me FMV ($10 mil) and then sells land to GM for $10 million. Constitutional?
Suppose I own a thousand acres of unimproved meadows and woods located in the path of commercial growth (let’s say in S.E. Lincoln). It turns out that there are some rare birds and fauna living on my land. Can the City of Lincoln take my land and use it as a public bird and wildlife sanctuary?
Sure, so long as it pays just compensation – (assume the land is worth $5,000 per acre – just compensation probably equals $5 million).
Suppose same facts but now, instead of condemning the land for a public wildlife preserve, the government instead passes a law that forbids any development that would disturb or endanger certain rare animals or plants.
Under this new law, I am forbidden to develop my land – I can go out there and hike and camp out, but I can’t build a housing development or a shopping center or any other profitable structure. Is this law constitutional?
Suppose the law allows me to develop 50% of my land so long as I agree to leave the other 50% in its natural state? [Does the size of the taking go to whether a taking has occurred, or only to the amount of compensation that must be paid? If a taking of 100 requires payment of 100, why doesn’t a taking of 50 (or of 1) require payment of 50 (or 1)?].
·                 Fifth Amendment Takings Clause: “nor shall private property be taken for public use without just compensation.”
·                       Primary Issues:
                    What constitutes a “taking” of private property?
·                                   Does regulation equal a taking? –the issue of regulating private land use so that the government does not have to actually pay for and buy the expensive private land for a bird sanctuary so that the land owner still has title to the land but can only use the land to the extent the government allows them to. For example, he can use the bird sanctuary for hiking and camping, but can not develop the land by building a housing development or shopping center or any other profitable structure. Is this constitutional?
                    When is a taking for “public use”?
·                                   Takings that don’t satisfy the “public use” requirement are strictly prohibited. Takings that do satisfy the “public use” requirement are permitted so long as the government pays the property owner just compensation (fair market value for the property taken). Public use really means public purpose. The issue of GM taking private land for a automobile factory, even though the land is not going to be used for public use, but it does have the public purpose of increased tax revenue for the government, increased jobs and overall economic profit brought to the community.
·                 Eminent Domain: federal, state, and local governments have the power of eminent domain–the power to take property at will
              Government always tries to buy the land from the property owner first; if the landowner wont agree to sell, a condemnation (forced sale) occurs and the government pays fair market value for the property
              Policy: if we want to implement a program that benefits all of society, then all of society should pay for it (through tax money to buy the land from the property owner) instead of just that property owner himself having to bear the cost by giving up his land freely.
·                 Questions To Ask:
              Has a taking occurred? If yes then
·                             Most of the takings cases revolve around this question
              Is the taking for a public use? If yes then
·                             Library, police station, freeway
·                             Court tends to read public use very broadly–public purpose
3.                     Has just compensation been paid?
·                             The US Constitution requires this!
·                             If just compensation has NOT been paid, is there any government police power that justifies the taking?
The Fifth Amendment and Takings of Private Property
Screen clipping taken: 1/16/2008, 1:59 PM
·                 PHYSICAL TAKINGS:
·                       Total Physical Taking: Duncan owns Blackacre in SE Lincoln. Land is worth $500,000. City of Lincoln needs a new school. They want to put the school up on Blackacre and they offer to buy it from Duncan. Duncan says the land is not for sale. Government condemns the land and pays Duncan $500,000 for the land.
·                             Everyone is paying their fair share for the school. The $500,000 is coming out of the tax pot. All t

ed less than a half mile from the Causby’s house and barn, and this runway was used from time to time by the US for landing and taking off airplanes. The planes sometimes passed over the Causby’s property at altitudes as low as 83 feet, making sleep impossible and causing acute nervousness. The low-flying planes also proved so frightening to the chickens that the Causby’s eventually had to give up their chicken business. The trial court ruled that it was a taking and ordered the US to pay $2000 in compensation. The US petitioned the Supreme Court which granted certiorari.RULE OF LAW: The use of a landowner’s airspace by low-flying government planes constitutes a partial taking for which, under the Fifth Amendment, the landowner is entitled to be compensated.ISSUE: Is Causby entitled to compensation for a reduction in property value from the disturbance of low-flying government aircraft?HOLDING: Yes. In this day and age, aircraft operators obviously enjoy at least a limited privilege to utilize the airspace above a private landowner’s property. But, despite the argument by the US that this path had been approved by the Civil Aeronautics Authority, this is not the standard to be used in evaluating the legality of a plane’s altitude. Minimum safe altitudes are prescribed by law, and the flights over the Causby’s land did not comply with the statutory standards. Therefore, the US did, in effect, usurp an easement in the Causby’s property and should be required to pay just compensation for this taking. However, since the trial court failed to make a finding as to the extent and duration of this easement taken, the case must be remanded to that court so that the amount of compensation may be determined.
·                 Hypothetical: if the harm caused was simply incidental damages resulting from the government using its own property nearby, this would not be a taking. The Causby case suggests that if you bring this claim under federal court, you lose. But, if you take it to the Nebraska state court, the Nebraska constitution will protect you.
Two bites at the apple:
·                       If it violates US constitution
·                       The states cant provide less protection than the US constitution, but they are free to provide more protection if the desire
NE Constitution: no property should be taken or damaged for public use without just compensation for it.