Why did we spend so much time on Loretto?† Nobody cares.† The case was an example of a per se taking for which compensation was required.
Weíve looked at one class of per se taking: acquisition of title.† There is also permanent physical invasion by the government or an entity authorized by the government.† Finally, we have deprivation of all use of the property.
Then we have regulatory or police takings.† Lots of regulation is okay and no compensation is required.† But some regulation can go too far.† If the regulation has gone too far, has it gone far enough that compensation is required?† Regulation can cross the line, but then if it crosses another line, you have to pay.
This preschool had access to a public highway via a curb cut.† However, when the city repaved the highway, they took away the curb cut and put a new curb there.† Now the preschool still had access, but it was through an adjacent shopping center.† They sue!!!
Whatís mandamus?† A mandamus action is an action to compel a state officer to do some ministerial act (i.e. something that is not discretionary but mandatory).† The preschool is trying to compel the state officer to bring an eminent domain proceeding under O.R.C. Ch. 163.† This is an inverse condemnation case.† The preschool says, ďYouíve already done the taking, but you should have given us a hearing.† So give it to us now!Ē
How does the court analyze the case?† Nobody disagrees that the right of access to abutting streets is an essential part of your property rights.
Is this case correctly decided?† Neither the majority nor the dissent deals with at least one important issue.† If we say that this is a substantial property right that is a part of ownership, then why are we asking whether the loss of access is substantial and unreasonable?
Everyone admits that youíll have to travel 90-200 feet to travel from the new curb cut to the existing preschool, but thereís a permanent easement that allows them to do that.† The Ohio Supreme Court goes off on the notion that if thereís a substantial or unreasonable interference to the right of access, it would be a taking.† The majority says this isnít substantial, the minority says that it is unreasonable.† If the right of access is taken, is it appropriate to inquire whether the loss of access is substantial or unreasonable?† To determine unreasonableness, do we look at how much the day care center is hurt, or how much the previous right of access is impaired?
Braunstein suggests that interference equals taking.† How did we get to substantial?† Braunstein says: ďIíve never heard of that before today.Ē† Isnít Loretto applicable to this case?† Arguably, it is.† Is there a physical invasion of the preschoolís land?† Not exactly.† The preschoolís right of access has been taken away.† Unlike in Loretto where a box was placed right on the landlordís building, the government has not physically invaded the preschoolís property.† However, the government has invaded part of the preschoolís property rights.
The court seems to admit that this is a taking of property.† The right of access is considered a property right, and if that right is taken then there shouldnít be any discussion of substantial or unreasonable.
Has the building of the curb deprived the preschool of the right to alienate?† Arguably, yes.† Just as Mrs. Loretto was deprived of her right to alienate her property (at least a little bit), the bit of land that constituted the preschoolís right of access cannot be alienated.† It doesnít have any value any more.
You may be able to distinguish Loretto.† Thatís why we spent so long on Loretto.† If youíre going to be a good lawyer, says Braunstein, you want to be able to read one case really well rather than lots of cases sloppily.
So what is the holding of the case?† Why didnít they discuss Loretto?† The Ohio Supreme Court seems to say that the government may take the right of access without compensation. †They also say that circuity of access created by government action is not compensable.
Some would say that this is an exercise of the state police power.† The owners still have access to their property; itís just that itís not as convenient as it was before.† Then we would argue that itís not a take, but rather itís regulation to promote public health, safety, and welfare.† That means itís no longer a per se taking, but it might still be a taking and we would have to use a multi-factor analysis.† If a regulation goes too far, it can nevertheless be a taking.
Even if the Ohio Supreme Court is right, their analysis is clearly wrong.† If this was an exam, they would get a C at best.
Braunstein suggests that asking whether there was a taking is a threshold question.
ďThis is a great case!† I love Oliver Wendell Holmes!† If I was king for a day, by first decree would be that no Supreme Court opinion can be more than three pages long, and there canít be more than one dissenting opinion.Ē
What was the deal here?† The plaintiffs owned the surface rights to the property while the defendant owned the rights to the coal beneath the property.† This was by express agreement.† Pennsylvania Coal once owned the whole thing, but then sold the surface rights but kept the minerals.† Pennsylvania Coal divided the surface and sub-surface estates.† Their agreement provided that the defendant could mine the coal beneath the land and the plaintiffs assumed the risk that their house would fall into the coal mine.
So what is Pennsylvania Coal complaining about?† They claim that this regulation actually constitutes a taking and thus the statute is unconstitutional to the extent that it doesnít provide just compensation.† Thereís no question that the government can do what theyíre doing.† They can certainly exercise the power of eminent domain, but they have to pay, and they may have to pay a heck of a lot.
Holmes states a famous rule: regulation is fine and doesnít constitute a taking so long as itís doesnít go too far.† Well, thatís swell, but when does it go too far?!
How does Holmes get to the proposition that there is a taking here?† He finds that the public interest in this case is very limited.† For all we know, in this case only one person would be hurt by violation of the statute.† There is a public interest, but itís just very small.† Holmes also says that this regulation is, in effect, the equivalent of destroying the coal.† You can never get it out!
Holmes balances the extent of the taking against the interest in public safety.
does average reciprocity of advantage
mean to Holmes?† If more than one
property owner bears the cost of regulation, but both also benefit, then we wonít
call it a taking.† In this case, we have
a small benefit to the homeowner and a big
detriment to the coal owner.† Maybe Pennsylvania
Coal owns all the coal in
What is Holmes looking at?† Is he looking at how much coal Pennsylvania Coal owns?† No!† All Holmes is looking at is the column of coal directly below the house, or however much coal you need to keep the house from caving in.† Holmes says you donít look at the coal mine as a whole, but rather you look just at the coal that has been deprived of its value.† Holmes says that this is a taking and that regulation has gone too far.
Whatís the deal with Brandeisís dissent?† Holmes and Brandeisís dissents often become the majority opinion in the future.
Brandeis says that you have the right to regulate a nuisance.† You canít use your land in such a way as to interfere with the use of your neighborís land.† Thatís a nuisance, the state has the power to regulate a nuisance, and thatís not a taking.† Brandeis says this is a temporary restriction for as long as the house is there.† Brandeis also says the state hasnít taken the property and the coal hasnít gone into their pocket.† Brandeis also says that this is an important public purpose: protecting health, safety, and welfare.
But hereís the difference that makes all the difference: Brandeis says that the diminution in value is slight.† Holmes said it was 100%!† You couldnít get any different!
What Brandeis says is that you donít take into account the fact that the Coal Company has divided up its land.† Brandeis says that when you look at the effect of state regulation, you must look at the whole thing (surface and subsurface combined).† Even if you donít look at the whole thing, you look at the subsurface as a whole.† Brandeis thus finds that the taking in this case is very small.
Brandeis performs the same balancing as Holmes and comes up with a different result.† How?† The most important difference between them is whatís called ďthe denominator problemĒ.† When you say ďsomeone has lost a lotĒ, you must ask: ďA lot compared to what?Ē
We know what the law says.† The law says: ďYou canít mine this coal.Ē† But compared to what?† Do we compare it to just that coal, or to all the coal?
This denominator problem is a recurring problem.† How do we pick the denominator for measuring the extent of a loss?
 Is this what they call hiding the ball?