Property
Class Notes
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.
We’ve
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.
The State ex
rel. Preschool Development, Ltd. v. City of Springfield
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!!!
What’s
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, “You’ve already done the
taking, but you should have given us a hearing.
So give it to us now!”
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 you’ll have to travel 90-200 feet to travel from the new curb cut
to the existing preschool, but there’s a permanent easement that allows them to
do that. The Ohio Supreme Court goes off
on the notion that if there’s a substantial
or unreasonable interference to the right of access, it would be a
taking. The majority says this isn’t
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: “I’ve never heard of that before today.”
Isn’t Loretto applicable
to this case? Arguably, it is. Is there a physical invasion of the preschool’s
land? Not exactly. The preschool’s right of access has been
taken away. Unlike in Loretto where a
box was placed right on the landlord’s building, the government has not
physically invaded the preschool’s property.
However, the government has
invaded part of the preschool’s property
rights.
Why
do we care about substantial? Was the taking in Loretto
substantial? The court says this is not
a taking because it wasn’t substantial
and unreasonable. But where does
this come from?[1]
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 shouldn’t 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 preschool’s right of access cannot be alienated. It doesn’t have any value any more.
You
may be able to distinguish Loretto. That’s why we spent so long on Loretto. If you’re 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
didn’t 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;
it’s just that it’s not as convenient as it was before. Then we would argue that it’s not a take, but
rather it’s regulation to promote public health, safety, and welfare. That means it’s 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.
Pennsylvania Coal Company v. Mahon
“This
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 can’t be more than one dissenting opinion.”
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.
Then
the
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 doesn’t provide just
compensation. There’s no question that
the government can do what they’re 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 doesn’t constitute a taking so long as it’s doesn’t go too far. Well, that’s 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 it’s 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.
What
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 won’t
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 don’t 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.
What’s
the deal with Brandeis’s dissent? Holmes
and Brandeis’s dissents often become the majority opinion in the future.
Brandeis
says that you have the right to regulate a nuisance. You can’t use your land in such a way as to
interfere with the use of your neighbor’s land.
That’s a nuisance, the state has the power to regulate a nuisance, and
that’s not a taking. Brandeis says this
is a temporary restriction for as long as the house is there. Brandeis also says the state hasn’t taken the
property and the coal hasn’t gone into their pocket. Brandeis also says that this is an important
public purpose: protecting health, safety, and welfare.
But
here’s the difference that makes all the difference: Brandeis says that the
diminution in value is slight. Holmes said it was 100%! You couldn’t get any
different!
What
Brandeis says is that you don’t 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 don’t 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
what’s called “the denominator problem”.
When you say “someone has lost a lot”, you must ask: “A lot compared to
what?”
We
know what the law says. The law says: “You
can’t mine this coal.” 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?