Navigation

Archive | 2022

October 6, 2022

Oh, Oh, The City Is Being Sued by Amtrak!

A few years ago, I wrote a blog “Can One Government Condemn Another Government’s Property?” (November 12, 2018) We wrote then: Generally, a body with the power of eminent domain cannot condemn the property of a higher sovereign.  But the key inquiry seems to be, is the current use a public use, since there is a doctrine of prior public use which holds that a condemnor may not condemn property already being used for a public purpose if the proposed use “will either destroy the existing (public) use or interfere… read more

By
Posted in Amtrak, Condemnation of Government Property, Doctrine of Federal Preemption, Supremacy Clause
Read more > 0

September 29, 2022

Will The Texas Bullet Train Ever Be Built?

We have written about the Texas Bullet Train several times in this blog, February 28, 2017, May 21, 2020 and October 8, 2020. The project, after a decade since it was announced, is still in limbo.  This is despite a June 2022 ruling by the Texas Supreme Court allowing the company to use eminent domain to acquire its right of way. The company is in complete disarray.  The CEO resigned and the Texas Central Board disbanded.  Land acquisition has stopped for the last two years. The high-speed train that promises… read more

By
Posted in Eminent Domain, Partial Takings, Severance Damages, Texas Bullet Train
Read more > 0

September 8, 2022

The Condemnation of a Going Concern

Section 708 of the Eminent Domain Procedure Law (“EDPL”) provides that the acquisition of other than real property, the acquisition shall be in the manner and procedure prescribed for the acquisition of real property by the EDPL. The provision is hardly noticed.  There are no cases annotated in McKinney’s Volume 16A.  But there are cases out there for review if you know about them. Matter of Port Auth. Trans-Hudson Corp. (Hudson Rapid Tubes Corp.), 20 NY2d 457 (1967).  In this case, the Port Authority of New York and New Jersey… read more

By
Posted in Condemnation of Going Concern, EDPL Section 708, Valuation of Going Concern
Read more > 0

August 30, 2022

When an Easement Is Really a Direct Taking

The right of an owner to just compensation for property taken by eminent domain is one guaranteed by the federal and state constitutions.  (Federal Constitution, Fourteenth Amendment; NY Constitution, Art. 1, Subd. 7).  The constitutional requirement of “just compensation” mandates that the property owner be indemnified so that he may be put in the same relative position, insofar as this is possible, as if the taking had not occurred.  City of Buffalo v J.W. Clement Co., Inc., 28 NY2d 241 258 (1971); Rose v State of New York, 24 NY2d… read more

By
Posted in Condemnation, Direct Taking, Easements, Eminent Domain
Read more > 0

August 16, 2022

The Expert Witness in a Condemnation Trial

The fundamental rule is that the qualifications of a witness as an expert is a determination within the sound discretion of the trial court.  Smith v City of New York, 238 AD2d 500 (2d Dept 1997). An expert, once qualified, is allowed to testify as to the expert’s opinion.  Sec. 7-301, Prince on Evidence (11th Ed. P. 456).  In a condemnation case, the evidence before the court will be expert testimony by appraisers, zoning experts and other valuation experts. As one court has stated, “impartiality should be the touchstone of… read more

By
Posted in Appraisers, Condemnation, Eminent Domain, Expert Witness, Independent Expert, Opinion Evidence, Qualifications
Read more > 0