Internet Materials -Chapter 12
CONTENTS Eminent Domain Kelo v. New London
Excerp from majority opinion
Excerpt from Justice O’Connor’s dissenting opinion
Daniel Goldstein v. Urban Development Corporation
Excerpt from Judge Smith’s dissent.
Adverse Possession Steuk v. Easley
Excerpt from Judge Dykman’s dissent
Edited Excerpt from majority opinion in Kelo v. New London
Kelo v. New London was decided 5–4 by the U.S. Supreme Court in 2005. It involved an attempt by the City of New London, Connecticut, to use the power of eminent domain to obtain title to Susette Kelso’s home, as well as the homes of other property owners. The property owners were blocking developers from constructing a tax-revenue producing development project that would economically benefit the city.
Susette Kelo v. City of New London
545 U.S. 469
U.S. Supreme Court
June 23, 2005
Justice Stevens delivered the opinion of the Court.
In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its down-town and waterfront areas.” . . . In assembling the land needed for this project, the city’s development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in -exchange for just compensation. The question presented is whether the city’s proposed disposition of this property qualifies as a “public use” within the meaning of the Takings Clause of the Fifth Amendment to the Constitution. . . .
The city of New London (hereinafter City) sits at the junction of the Thames River and the Long Island Sound in southeastern Connecticut. Decades of economic decline led a state agency in 1990 to designate the City a “distressed municipality.” In 1996, the Federal Government closed the Naval Undersea Warfare Center, which had been located in the Fort Trumbull area of the City and had employed over 1,500 people. In 1998, the City’s unemployment rate was nearly double that of the State, and its population of just under 24,000 residents was at its lowest since 1920.
These conditions prompted state and local officials to target New London, and particularly its Fort Trumbull area, for economic revitalization. To this end, respondent New London Development Corporation (NLDC), a private nonprofit entity established some years earlier to assist the City in planning economic development, was reactivated. . . . Upon obtaining state-level approval, the NLDC fi-nal--ized an integrated development plan focused on 90 acres of the Fort Trumbull area.
. . . The development plan encompasses seven parcels. Parcel 1 is designated for a water-front conference hotel at the center of a “small urban village” that will include restaurants and shopping. This parcel will also have marinas for both recreational and commercial uses. A pedestrian “riverwalk” will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park. This parcel also includes space reserved for a new U.S. Coast Guard Museum. Parcel 3, . . . will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4-acre site that will be used -either to support the adjacent state park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for office and retail space, parking, and water-dependent commercial uses. . . .
In addition to creating jobs, generating tax revenue, and helping to “build momentum for the revitalization of downtown New London,”. . . the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.
The city council approved the plan in January 2000, and designated the NLDC as its development agent in charge of implemen-tation. . . . The city council also authorized the NLDC to purchase property or to acquire property by exercising eminent domain in the City’s name. . . . The NLDC successfully negotiated the purchase of most of the real estate in the 90-acre area, but its negotiations with petitioners failed. As a consequence, in November 2000, the NLDC initiated the condemnation pro-ceedings that gave rise to this case. . .
Petitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made extensive improvements to her house, which she prizes for its water view. Petitioner Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband Charles (also a petitioner) has lived in the house since they married some 60 years ago. In all, the nine petitioners own 15 properties in Fort Trumbull—4 in parcel 3 of the development plan and 11 in parcel 4A. Ten of the parcels are occupied by the owner or a family member; the other five are held as investment properties. There is no allegation that any of these properties is blighted or other-wise in poor condition; rather, they were condemned only because they happen to be located in the development area.
In December 2000, petitioners brought this action in the New London Superior Court. They claimed, among other things, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment. After a 7-day bench trial, the Superior Court granted a permanent restraining order prohibiting the taking of the properties located in parcel 4A (park or marina support). It, however, denied petitioners relief as to the properties located in parcel 3 (office space). . . .
After the Superior Court ruled, both sides took appeals to the Supreme Court of Connecti-cut. That court held, over a dissent, that all of the City’s proposed takings were valid. . . .
We granted certiorari to determine whether a city’s decision to take property for the purpose of economic development satisfies the “public use” requirement of the Fifth Amendment. . . .
Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking. . . .
As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. . . . Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings -before us, however, would be executed pursuant to a “carefully considered” development plan. . . . The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. . . . Therefore, . . . the City’s development plan was not adopted “to benefit a particular class of identifiable individuals.”
On the other hand, this is not a case in which the City is planning to open the condemned land—at least not in its entirety—to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” . . . Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?) . . . but it proved to be impractical given the diverse and always evolving needs of society. . . . Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” . . . We have repeatedly and consistently rejected that narrow test ever since. . . .
The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field. . . .
Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the “great respect” that we owe to state legislatures and state courts in discerning local public needs . . . (noting that these needs were likely to vary depending on a State’s “resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people”). . . . For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.
Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including—but by no means limited to—new jobs and increased tax revenue. As with other exercises in urban planning and development, . . . the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effec-tuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us . . . to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.
To avoid this result, petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use. Putting aside the unpersuasive suggestion that the City’s plan will provide only purely economic benefits, neither precedent nor logic supports petitioners’ proposal. Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized. In our cases upholding takings that facilitated agriculture and mining, for example, we emphasized the importance of those industries to the welfare of the States in question. . . . It would be incongruous to hold that the City’s interest in the economic benefits to be derived from the development of the Fort Trumbull area has less of a public character than any of those other interests. Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose.
Petitioners contend that using eminent do-main for economic development impermissibly blurs the boundary between public and private takings. Again, our cases foreclose this objection. Quite simply, the government’s pursuit of a public purpose will often benefit individual private parties. For ex-ample, in . . . [Hawaii Housing Authority v. Midkiff . . . (1984], the forced transfer of property conferred a direct and significant benefit on those lessees who were previously unable to purchase their homes. . . . The owner of the department store in . . . [Berman v. Parker, . . . (1954)] objected to “taking from one businessman for the benefit of another businessman,” . . . referring to the fact that under the redevelopment plan land would be leased or sold to private developers for redevelopment. . . . Our rejection of that contention has particular relevance to the instant case: “The public end may be as well or better served through an agency of private enterprise than through a department of -government—or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.” . . .
It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A’s property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot . . . the hypothetical cases posited by petitioners can be confronted if and when they arise. . . . They do not warrant the crafting of an artificial -restriction on the concept of public use. . . .
Alternatively, petitioners maintain that for takings of this kind we should require a “reasonable certainty” that the expected public benefits will actually accrue. Orderly implementation of a comprehensive redevelopment plan obviously requires that the legal rights of all interested parties be established before new construction can be commenced. A constitutional rule that required postponement of the judicial approval of every condemnation until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the successful consummation of many such plans.
Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project. “It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.” . . .
In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. . . . We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, . . . while others are expressed in state eminent domain stat-utes that carefully limit the grounds upon which takings may be exercised. . . . As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. . . . This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.
The judgment of the Supreme Court of Connecticut is affirmed.
It is so ordered.
Edited Excerpt fromJustice O’ Connor’s Dissent
Justice O’Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.
This case returns us for the first time in over 20 years to the hard question of when a purportedly “public purpose” taking meets the public use requirement. It presents an issue of first impression: Are economic development takings constitutional? I would hold that they are not. . . .
. . . New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn.
In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public—such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to gen-erate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power. . . .
The Court rightfully admits, . . . that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. In any event, this constraint has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. . . .
Finally, . . . the Court suggests that property owners should turn to the States, who may or may not choose to impose appropriate limits on economic development takings. . . . This is an abdication of our responsibility. States play many important functions in our system of dual sovereignty, but compensating for our refusal to enforce properly the Federal Constitution (and a provision meant to curtail state action, no less) is not among them. . . .
Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. . . .
I would hold that the takings . . . are unconstitutional, reverse the judgment of the Supreme Court of Connecticut, and remand for further proceedings.
Kelo v. New London—A Postcript
After the New London City Council voted 5–2 on June 5, 2006, to evict the remaining two hold-out homeowners, both decided to enter into agreements with the City. The City agreed to move Susette Kelo’s small pink cottage back to the neighborhood where it originally stood some 100 years ago, prior to its relocation to the Fort Trumbull area of the City. Although the other homeowner’s house will be torn down, the city has offered alternative housing satisfactory to the family.
The Kelo decision proved to be very controversial, and Susette Kelo’s battle to save her home has had an amazing impact on the law of eminent domain at the state level. Throughout this textbook, the importance of our federal form of government has been stressed. As Justice Stevens pointed out in his opinion, because of federalism, the Court’s decision in Kelo v. New London was not necessarily the last word on the subject. The decision did not preclude the states from enacting laws that prohibit or restrict the use of the eminent domain power in the manner utilized by New London. During the first eighteen months after the Supreme Court’s decision in Kelo, over half of the state legislatures enacted new legislation or passed constitutional amendments. This legislation varies considerably from state to state as each legislature wrestles with how to balance the competing interests.
Daniel Goldstein v. Urban Development Corporation-Edited Excerpt from Judge Smith’s Dissent
Daniel Goldstein v. Urban Development Corporation,.
921 N.E.2d 164
Court of Appeals of New York.
November 24, 2009
Smith, J. (dissenting).
The good news from today's decision is that our Court has not followed the lead of the United States Supreme Court in rendering the "public use" restriction on the Eminent Domain Clause virtually meaningless. The bad news is that the majority is much too deferential to the self-serving determination by Empire State Development Corporation (ESDC) that petitioners live in a "blighted" area, and are accordingly subject to having their homes seized and turned over to a private developer. I do not think the record supports ESDC's determination, and I therefore dissent.
Article I, § 7 (a) of the State Constitution says: "Private property shall not be taken for public use without just compensation."
The words "public use" embody an important protection for property owners. They prevent the State from invoking its eminent domain power as a means of transferring property from one private owner to another who has found more favor with state officials, or who promises to use the land in a way more to the State's liking. They do not require that all takings result in public ownership of the property, but they do ordinarily require that, if the land is transferred to private hands, it be used after the taking in a way that benefits the public directly. A recognized exception permits the transfer of "blighted" land to private developers without so strict a limitation on its subsequent use, but that exception is applicable only in cases in which the use of the land by its original owner creates a danger to public health and safety.
These principles are established by two centuries of New York cases. A line of nineteenth century decisions made clear that the State could not use the eminent domain power to transfer property from one private owner to another, unless the use to which the second owner put the property would be "public" in some meaningful sense. In the twentieth century — an era friendlier to government, and less friendly to private property — this rule was diluted, but our cases do not justify the conclusion that the public use limitation was abandoned or rendered trivial. Rather, the twentieth century cases created what may be called a "blight exception" to the public use limitation. The critical question on this appeal is whether that exception applies, a question that can be better understood after a more detailed description of the way our "public use" law has developed.
In the early nineteenth century, New York judges debated whether the eminent domain power could ever be used to transfer property from one private owner to another.... Later cases make clear that this debate was settled in favor of the...view that certain uses of property by private parties — e.g., for "turnpike and other roads, railways, canals, ferries and bridges"... could be considered public, but that takings in which land was transferred to private hands would be strictly limited to situations in which the public nature of the use was clear.... In Matter of Niagara Falls & Whirlpool Ry. Co. ... ), we said: "The right of the state to authorize the condemnation of private property for the construction of railroads and to delegate the power to take proceedings for that purpose to railroad corporations, has become an accepted doctrine of constitutional law and is not open to debate." But we held that the proposed taking in the Niagara case, which was for a railroad that would serve "the sole purpose of furnishing sight-seers during about four months of the year, greater facilities than they now enjoy for seeing . . . part of [the] Niagara river," was not for a public use (id. at 382).
Under the nineteenth century understanding of public use, the taking at issue in this case would certainly not be permitted. It might be possible to debate whether a sports stadium open to the public is a "public use" in the traditional sense, but the renting of commercial and residential space by a private developer clearly is not.
Our twentieth century cases, while not all consistent and containing some confusing language, are best read as modifying, rather than nullifying or abandoning, the established public use limitation. A series of cases upheld takings for what was variously characterized as slum clearance, removal of blight, or correction of unsafe, unsanitary or substandard housing conditions (Matter of New York City Hous. Auth. v Muller,... ; Matter of Murray v LaGuardia,... ; Yonkers Community Dev. Agency v Morris, ... ). While these cases undoubtedly expanded the old understanding of public use, they did not establish the general proposition that property may be condemned and turned over to a private developer every time a state agency thinks that doing so would improve the neighborhood.
Muller approved a taking of property where "unsanitary and substandard housing conditions" were found to exist.... We observed:
"The public evils, social and economic of such conditions, are unquestioned and unquestionable. Slum areas are the breeding places of disease which take toll not only from denizens, but, by spread, from the inhabitants of the entire city and State. Juvenile delinquency, crime and immorality are there born, find protection and flourish. Enormous economic loss results directly from the necessary expenditure of public funds to maintain health and hospital services for afflicted slum dwellers and to war against crime and immorality. Indirectly there is an equally heavy capital loss and a diminishing return in taxes because of the areas blighted by the existence of the slums"....
Muller did not involve transfer to an ordinary private developer: the property in question was to be rented by the City, or by "limited dividend corporations," to people of low income .... In Muller, we reiterated the essential principle of the public use limitation:
"Nothing is better settled than that the property of one individual cannot, without his consent, be devoted to the private use of another, even when there is an incidental or colorable benefit to the public. The facts here present no such case . . . . [T]he public is seeking to take the defendant's property and to administer it as part of a project conceived and to be carried out in its own interest and for its own protection"....
Murray, unlike Muller, did involve a taking from which a purely private company "may ultimately reap a profit" .... The need to remedy "conditions in those blighted urban areas where slums exist," conditions that "affect the health, safety and welfare of the public," furnished the reason for upholding the taking....
Our later decision in Yonkers Community Development is relied on heavily by ESDC here as permitting great leeway to the State in condemning blighted areas. But Yonkers contains language looking in both directions. It does seem to adopt a rather loose interpretation of "substandard" conditions that would justify a taking..., but it also says that "courts are required to be more than rubber stamps in the determination of the existence of substandard conditions" (id. at 485) and that "in order to utilize the public purpose attached to clearance of substandard land, such clearance must be the primary purpose of the taking, not some other public purpose, however laudable it might be".... In Yonkers, we found that the agency had not provided factual support for its claim that the land to be taken was substandard..., but held that the landowners had failed to raise this issue properly by their pleadings... .
The majority does not wholly reject what I have said in section I of this dissent. Indeed, the majority seems to accept the premise that the Eminent Domain Clause of the New York Constitution has independent vitality, and may offer more protection to property owners than its federal counterpart. I am pleased that the majority does not follow the Supreme Court's decisions in Berman [v. Parker, 1954], [Hawaii Housing Authority v.] Midkiff,  and Kelo [v. New London, 2005], which equate "public use" in the Constitution with public purpose, thus leaving governments free to accomplish by eminent domain any goal within their general power to act. Where I part company with the majority is in its conclusion that we must defer to ESDC's determination that the properties at issue here fall within the blight exception to the public use limitation.
It is clear to me from the record that the elimination of blight, in the sense of substandard and unsanitary conditions that present a danger to public safety, was never the bona fide purpose of the development at issue in this case. Indeed, blight removal or slum clearance, which were much in vogue among the urban planners of several decades ago, have waned in popularity, vindicating the comment of Judge Van Voorhis, dissenting in Cannata, that "[t]he public theorists are not always correct".... It is more popular today to speak of an "urban landscape" — the words used by Bruce Ratner to describe his "vision" of the Atlantic Yards development in a public presentation in January 2004 (Powell, For Brooklyn, a Celebration or a Curse?, Washington Post, Jan. 26, 2004, at A3).
According to the petition in this case, when the project was originally announced in 2003 the public benefit claimed for it was economic development — job creation and the bringing of a professional basketball team to Brooklyn. Petitioners allege that nothing was said about "blight" by the sponsors of the project until 2005; ESDC has not identified any earlier use of the term. In 2005, ESDC retained a consultant to conduct a "blight study." In light of the special status accorded to blight in the New York law of eminent domain, the inference that it was a pretext, not the true motive for this development, seems compelling.
It is apparent from a review of ESDC's blight study that its authors faced a difficult problem. Only the northern part of the area on which Atlantic Yards is to be built can fairly be described as blighted. As the majority opinion explains, the northern part has long been included in the Atlantic Terminal Urban Renewal Area (ATURA), and is afflicted by deteriorating conditions perhaps attributable to the presence of the Vanderbilt Yards. But the southern part of the project area, where petitioners live, has never been part of ATURA and appears, from the photographs and the descriptions contained in ESDC's blight study, to be a normal and pleasant residential community.
ESDC's consultants did their best. Proceeding lot by lot through the area in which petitioners live, they were able to find that a number of buildings were not in good condition; petitioners claim that this results in large part from the fact that Ratner's plan to acquire the properties and demolish the buildings had been public knowledge for years when the blight study was conducted. Choosing their words carefully, the consultants concluded that the area of the proposed Atlantic Yards development, taken as a whole, was "characterized by blighted conditions." They did not find, and it does not appear they could find, that the area where petitioners live is a blighted area or slum of the kind that prompted twentieth century courts to relax the public use limitation on the eminent domain power.
The majority opinion acknowledges that the conditions ESDC relies on here "do not begin to approach in severity the dire circumstances of urban slum dwelling" contemplated by the cases that developed the blight exception.... The majority concludes, however, that determining whether the area in question is really blighted is not "primarily a judicial exercise".... In doing so, I think, the majority loses sight of the nature of the issue.
The determination of whether a proposed taking is truly for public use has always been a judicial exercise... The right not to have one's property taken for other than public use is a constitutional right like others. It is hard to imagine any court saying that a decision about whether an utterance is constitutionally protected speech, or whether a search was unreasonable, or whether a school district has been guilty of racial discrimination, is not primarily a judicial exercise. While no doubt some degree of deference is due to public agencies and to legislatures, to allow them to decide the facts on which constitutional rights depend is to render the constitutional protections impotent....
The whole point of the public use limitation is to prevent takings even when a state agency deems them desirable. To let the agency itself determine when the public use requirement is satisfied is to make the agency a judge in its own cause. I think that it is we who should perform the role of judges, and that we should do so by deciding that the proposed taking in this case is not for public use.
Steuk v. Easley
Court of Appeals of Wisconsin, District IV.
May 13, 2010.
Dykman, P.J. (dissenting).
I believe that the majority has made it impossible to adversely possess hunting land, which is characterized by an absence of fences and structures. Though the majority has stated that it must accept the trial court's findings, I believe that those findings require the conclusion that the plaintiffs occupied the disputed area for the required time, and that Dr. Easley did not take steps to prevent actions consistent only with ownership of the disputed area. The following findings from the trial court's opinion show this for me.
During all of those years, Daniels and his hunting parties, and Mr. Sheller, and Mr. Postler, among others, would have used guns during the gun deer season, and the discharge of those guns would have been readily audible to persons situated on the adjoining properties of Dr. Easley. They would have also discharged guns during the spring turkey season, as well as the fall grouse and turkey seasons. Almost all of the land owned by Dr. Easley on Exhibit 1 (in Government Lots 5, 6 and 7) would be within a half mile radius, or less, of the southern end of the disputed area. Certainly within that radius, the 19 hunters on the Easley property could have and should have heard the rifle and shotgun discharges of the plaintiff and his predecessors in interest and their invitees. Yet, not once before 2006, did Dr. Easley ever evict any trespasser or hunter from the disputed area.
... While Dr. Easley and his group of 19 friends and relatives who hunted these properties demonstrated a tenacity of concern for exclusively possessing and using Dr. Easley's hunting land throughout the last half of the 1970's onward, such tenacity of concern was never demonstrated at all as to the disputed land until sometime in 2006. The contrast here is rather stunning. The very nature and extent of the anti-trespasser actions taken by Dr. Easley and his friends everywhere else on his property is in stark contrast to the total lack of any such actions on the disputed area.
... When the highest and best use of the prime hunting land is for hunting, and where one party and his predecessors and invitees totally dominate that piece of land for 30 or more hunting seasons, then that is sufficient notice to everyone in the area, including the rightful owner. It is particularly true when the evidence of occupancy includes putting a road up to and through part of the disputed area, as well as clearing a path from the west edge of the oak island to the eastern lakeshore of Mud Lake. Where it also includes placing numerous permanent and portable deer stands throughout the area, as well as motion-sensitive cameras as well as hunters on foot and in stands, and gunshots and arrows flying with regularity during the deer season. I don't think it is humanly possible to occupy prime hunting space more than what the plaintiff and his predecessors have done.
There is much more supporting the trial court's conclusion in its forty-three page decision. I do not take issue with the law the majority cites. But I believe that the majority has re-weighed the evidence, focused on evidence it finds more persuasive than the evidence relied on by the trial court, and therefore is able to reach a conclusion contrary to that of the trial court. I did not view the witnesses, or the hunting land. The trial court did. I am unwilling to second guess the trial court's credibility determinations and fact finding. But, because the majority has held otherwise, I can only respectfully dissent