The Role of Custom
Thornton v. Hay, 462 P.2d 671 (Or. 1969).

Appeal from decree enjoining building of fences.

Court rejected prescription because it applies
only to a specific tract of land.

Instead chose the English doctrine of custom
because it could cover a larger area.

Must be ancient.

Right must be exercised without interruption.

Must not be repugnant or inconsistent with
other customs or law.
Custom Continued
Stevens v. City of Cannon Beach,
114 S.Ct. 1332 (1994) (cert. denied).
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
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
Inverse condemnation action claiming takings in
violation of 5th and 14th Amendments because
denied permit to build seawall.
Referring to Lucas v. South Carolina Coastal
Council, lower court held that custom was a
background principle.
Property right never existed in Petitioners.
Dissent wants to return the dry sand area to
private ownership.
William D. Araiza, Democracy,
Distrust, and The Public Trust, p. 47
1.
Can the doctrine be justified against the
charge that it constitutes antidemocratic
judicial interference in matters properly left
to political branches of government? (See
Huffman, p. 49.)
2.
Can coherent rules be developed regarding
the scope of the resources protected by the
doctrine?
3.
How should the doctrine be affected by the
unquestioned increase in governmental
concern for the environment?
Eminent Domain
Eminent domain is a forced sale at a
judicially determined price, with
compensation paid to the original
owner. The compensation recognizes
that the original owner had an
entitlement, but that the entitlement
was only protected by a liability rule
(as opposed to a property rule).
Inverse Condemnation
 Action
brought by landowner alleging
that a taking of her property has
resulted from the government’s
activities.
 Essentially
“reverse condemnation” in
that the landowner is the one bringing
the suit instead of the condemning
authority.
Challenging Eminent Domain
Condemnation
1.
Authority
2.
Proper Public Purpose
3.
Means Rationally Related to Ends – not
arbitrary and no lower cost alternatives
available
4.
Degree of Private Burden
5.
Procedural Due Process
6.
Appropriate Amount of Compensation – market
value of what was taken, not replacement or
relocation cost
Takings Factors
Penn Central Transp. Co. v. City of New
York, 438 U.S. 104 (1978)
1.
the character of the regulation,
2.
the economic impact of the regulation
upon the private property owner, and
3.
the extent to which the regulation
interferes with the distinct investmentbacked expectations of the property
owner.
Lucas v. South Carolina Coastal
Council, 505 U.S. 1003 (1992)

Compensation is required when
government action deprives the property
owner of “all economically beneficial
use” of the property

Landowner is constrained by those
“restrictions that background
principles of the State’s law of
property and nuisance already place
upon land ownership.”
Palazzolo’s Land in
Westerly, Rhode Island
on Winnapaug Pond
Palazzolo v. Rhode Island,
121 S. Ct. 2448 (2001)

Background principles of state property
law – common, shared understanding of
state’s authority (enactment not enough)

Notice – when Palazzolo became title holder,
regulation was already in place

Remember the public trust doctrine: State
holds wetlands in trust for its citizens. State
cannot be held to have taken what the
property owner never had (i.e., a right to
develop wetlands).
Palazzolo v. Rhode Island,
121 S. Ct. 2448 (2001)
 Token
Interest - $200,00 is not a token
 Proper
Denominator in Takings
Fraction (Conceptual Severance) –
Should you consider the property as a
whole or can the property owner divide up
the property and argue that with respect to
a particular portion, he was deprived of all
economically beneficial use of the land?
Palazzolo v. Rhode Island,
121 S. Ct. 2448 (2001)
Justice O’Connor concurring.

What role should timing (enactment of
law vs. acquisition of property) play in
Penn Central analysis?

The regulatory regime in place at the time
of acquisition helps to shape the
reasonableness of the investmentbacked expectations.

Still only one factor among several so not
dispositive.