- The speaker expresses their liking for something
- They ask for forgiveness or permission for something

- The speaker discusses the historical background of common law and how it relates to compensation for closing nuisances.
- The government's role in taking property for military use requires compensation, but closing nuisances does not.
- The speaker mentions the expansion of government privileges, particularly through zoning laws.
- The Penn Central case is highlighted as an important case in understanding the government's control over property use.
- The court established a taking test to determine if a government action qualifies as a taking of property.
- The court rejected the argument of subdividing property to argue against restrictions.
- The court ruled that the government's control of property in the Penn Central case was permissible because it did not interfere with the entire use or profitable operation of the property.
- The historical significance and value of the property were considered in the case.
- The government's powers in defining permissible property use have expanded.
- The speaker emphasizes the importance of understanding the Penn Central case in relation to other cases.
- The speaker suggests revisiting the Pratt case.

- The discussion revolves around the case of declaring lakes as public property.
- The issue is whether the act resulted in a diminution of Pratt's property.
- The test is whether the regulation deprives the owner of all reasonable use of the land.
- The case is considered an expansion of the Penn Central case, with a higher bar for what constitutes a taking.
- The difference is that Penn Central benefited the general public, while this case is the government imposing a standard on private riparian rights.
- The question is how the court will decide if this is a taking that requires compensation.
- The court seems to have difficulty determining if something is differentially more or less valuable, but can recognize when something is a taking.
- The lack of evidence on the loss in value makes it hard to assess the substantiality of the loss.
- The burden is on the owner to prove that the property is primarily valuable due to the ability to harvest rice mechanically.
- It is unclear how the state court will determine this and what tools or appraisals will be used.

- The video discusses the concept of "taking" in relation to property rights and government regulations.
- It raises questions about the reasonable use of property and the impact of regulations on the value of land.
- The case mentioned involves a restriction on mechanical harvesting of rice, which may affect the value of the land.
- The video explores the difficulty of determining the extent of loss and reasonable use of the land.
- It also mentions the government's intention to respect traditional uses and rights of Native American tribes.
- The discussion highlights the need for compensation for any loss suffered by the property owner.
- The video expresses concerns about government interference in private land use.

- The speaker expresses concern about government intervention in private land use.
- The court case being discussed involves conflicting reasons for the law.
- The court refers to government enterprise and arbitration, which may be an encouragement to settle the case.
- There is confusion about the distinction between regulating private uses and public uses in terms of takings.
- The difficulty of this area of the law is highlighted, as laws can have unintended consequences.
- The case raises questions about the effects of new regulations and laws on land use situations.
- The regulation in question restricts how the land can be used, but may not be considered a taking.
- The language in the case refers to regulation serving an arbitration function and governmental enterprise.
- The effect of mechanical rice harvesting on nearby lakes is discussed in relation to the case.
- The case highlights the uncertainties and difficulties that arise from government regulation of land use.

- The video discusses the uncertainties and consequences of government regulation in land use.
- The case of Lucas is mentioned as an example, where the government's aspirations in regulating land use are explored.
- The facts of the case involve a man who purchased land on a beach in South Carolina and built two houses, but a new law prohibited him from using the land.
- The court found that compensation may be required if the state reasonably concludes that health, safety, morals, or general welfare will be promoted by prohibiting certain land uses.
- The case is remanded to consider if there is any element of nuisance that justifies the prohibition.
- The video ends with a promise to discuss the case further and to provide a useful statement on how similar cases will be decided in the future.

- The video discusses the historical background of common law and compensation for closing nuisances.
- The government's role in taking property for military use requires compensation, but closing nuisances does not.
- The expansion of government privileges, particularly through zoning laws, is mentioned.
- The Penn Central case is highlighted as an important case in understanding government control over property use.
- The court established a taking test to determine if a government action qualifies as a taking of property.
- The court ruled that the government's control of property in the Penn Central case was permissible because it did not interfere with the entire use or profitable operation of the property.
- The speaker suggests revisiting the Pratt case, which involves declaring lakes as public property.
- The video explores the difficulty of determining the extent of loss and reasonable use of land in relation to government regulations.
- The case raises questions about the effects of new regulations and laws on land use situations.
- The Lucas case is mentioned as an example of government regulation in land use, where compensation may be required if certain land uses are prohibited for health, safety, morals, or general welfare reasons.

I've got so caught up in my own thoughts about how to present this material that I lost track of time.

What I'm thinking is that a little historical background into the subject would be the best way to approach the subject, because It is quite confusing, at least so it seems to me.

And that takes us back to the common law and the developments in the common law that have occurred in the last few years.

The common law said that no compensation would have to be paid or no account would have to be paid to the closing of nuisances.

What those nuisances were was a fairly defined category.

They were things that were immoral or improper.

A house of prostitution would be a modal example of that.

And to close that house would not require any compensation.

It was a nuisance and the government was acting properly by abating a nuisance.

Other than that, if the property was taken for, because the army needed it or the Navy needed it, that did require compensation because you were, the proper role of the government was to govern, not to take the people's property.

And as I tried to explain last time, it had a long history to it.

Well, today we've had a quite substantial enlargement of the duties, or at least the privileges, of the government.

And the modal case for that is, of course, zoning laws, which were upheld even though there was nothing wrong with the use of the municipal use of property, but it was seemed fair and seemed right for the government to step in and uphold local zoning laws that restricted the use of property to particular kinds of purposes.

And thereby the role of the government was enlarged.

And 1 of those we were talking about last time in looking at Pratt.

But the modal case I think, or the most important case to deal with the problem of the extent to which the government could control the use of property without compensating the owners is the Penn Central case.

37 of the table of cases in the front of the book, front of the book, you will see the citation of the Penn Central Transportation Company against New York City, which is mentioned 12345678, many times.

It's not, have you studied that in your, in the course in constitutional law you have?

Well, we're studying property law, not constitutional law.

So I think it would be useful to have it stated in terms of its effect on property.

We created a taking test and then also further defined whether or not kind of segmenting a property and evaluating the use of that segment is a viable argument for taking.

So the factors that identified was the economic impact of the regulation on deployments and then the character of the governmental action.

If those 2 prongs were satisfied, you could define it as a taking.

But of course, the court also rejected an argument that you could segment your property and say, I have the ground property, but I also have the airspace.

And if you fully take away my airspace, that counts as taking, at least in that case, they declined to allow a property owner to sort of subdivide their property for the purposes of arguing.

It was a restriction on what the property owner could do.

The court ruled that 1, it didn't interfere with the entire use of the property, only part of it, and then also it did not actually interfere with the profitable operation of the property?

The profitable operation of the property was, I suppose, a given in its current state.

It would have been more valuable had the railroad been allowed to, do what, to build up to the skies.

I've forgotten how high the little plant building was, but in any event, the control by the state, by the government was not a real confiscation of the property, but it was permissible.

Because it didn't interfere with the way the property had been used and it didn't impact the entire use of the property.

Can you explain that question a bit more?

I mean, it was operating the train station.

But there was a consideration, really, of the worth of the building itself.

I mean, they deemed it of historical significance.

Yeah, it was of historical significance, wasn't it?

And those of you who have seen Grand Central Station will know that there's something to that.

It's very attractive, if you like, or impressive, I suppose is the right word for it, use of the property.

Now, so what does that mean in terms of what we're looking at?

Well, it must mean that the powers of the government have, in defining what is permissible, have expanded quite considerably from a regime which looks at whether the use of the property was lawful or not.

It's quite different than restricting the ability of the railroad to lease out his properties to so that it could be a huge development there.

So that's really the background of this case, or sorry of the of the cases that we have today.

And the question really is how far the rationale which allows the government to forbid the creation of a high building on Grand Central Station relates to the various developments that we read about in the cases that we have.

And that's really my reason for pointing out the omission of the Penn Central case from the casebook, except as I mentioned, time after time in the cases that we have to look at.

I don't think I've been very articulate in explaining why we have to spend some time with Penn Central.

Okay, well, it's the background And I think we ought to look at the cases that we have, remembering that off-sited case.

Now, as far as I see it, we have something left to deal with the Pratt case on page 753.

We took it up last time, And I think we ought to return to it.

What's left that we have to talk about, should talk about.

We're talking about how they can declare these lakes public property.

I was thinking it might have to do with the fact that their natural bodies of water and I think 1 of them was about 60 acres.

So maybe the issue wasn't so much that they are like now declaring it public property, it's that maybe it should have always been considered public property.

Like due to the fact that they're a natural body of water.

mean, they're pretty shallow, they're not navigable, like 60 acres, it's not very large lake.

Now, what's the issue in the case, though?

So they were mandated to determine whether or not I think the act had resulted in a diminution of Pratt's property.

Let me just call your attention to page 755.

And like a land use regulation, this is near the bottom of the page, the bar on mechanical harvesting is valid unless it deprives Mr.

So I guess it wouldn't have deprived him of all reasonable use of it, so it's not necessarily a taking.

Depriving him of all reasonable use of the property.

Penn Central said, you can have some regulation.

Is this case simply a small version of Penn Central?

I guess maybe it goes a little bit further.

So, did Penn Central say that, they didn't necessarily articulate that it has to deprive you of all reasonable use, right?

So I guess this is setting the bar a little bit higher in terms of what constitutes a taking.

What are the rest of you think about that?

Difference in this case is like, if you were to put a percentage, If you were to put a percentage to it, Ncentral maybe was only depleted of like, you know, maybe say like half of the economic use of the property.

Whereas like in this case, it seems like it's closer to 100% maybe even like 95%.

It deprives the owner of the right to do what he's been doing, doesn't it?

And is what lies behind your answer a belief that this case is not unlike Penn Central?

This is farther than Penn Central goes and the case was wrongly decided.

I think it's taking the same rule, but just stretching it to make it more applicable.

It's probably it's limits like it's, it's really really close to being substantially taking all of the economic use, whereas with and central it's like you still had the income coming in for the transportation company and there was still something you could do.

I think that there may be just saying like, oh, you could do sightseeing tours or something like that.

So it can't be nearly as lucrative for him.

But the similarity between the 2 cases is clear to you.

I feel like there's a big difference because of the fact that it's a point of water.

Like the court, you can say that it doesn't really own the water, it just has like right to it.

And then we're trying to, they were made it into the lower court to assess how much the value of the land was to be given to the water.

Yeah, is that a, I wanna talk about that too is that a reasonable test how how are they going to decide that?

How is the lower court going to decide the value of his land?

I guess on a technicality it didn't get decreased at all because he couldn't ever grow rice on his land.

It mystifies me how a court's going to decide that.

On page 756, it says that where the regulation is for the benefit of a governmental enterprise where a few individuals must bear

I think I'm on the second paragraph on that page 76.

So it says where the regulations were the benefit of a governmental enterprise, where a few individuals must bear the burden for public use that a taking occurs.

I think the difference between Penn Central and then this case is that Penn Central was used for the general public as well.

Like everyone benefited from the whole landmark where this is just the government kind of imposing a standard on his private, on his riparian rights.

So that's the major difference of the use of the land.

And that's why this is considered a taking and Penn Central wasn't.

Or is that almost in line to what you were thinking?

Well, I'm not sure myself what the answer to the question is.

Maybe that's what I was hoping for your wisdom, not mine.

Because I don't quite see how that test is going to be met how they're going to decide the case.

Even though this case didn't for the opinion in this case didn't specify this it seems kind of similar to like the reasoning we get in a case later on about how there's like con and law limitations on property.

con and law limitations on how much you really own a body of water.

Well I mean that's certainly true although this is not navigable water but the the the question that I'm asking and really that bothers me is how the decision is gonna be made about whether this is a taking that requires compensation.

It seems like the court, the way that they're applying the rule in both Penn Central and in this case, it seems like they're saying like, well, we don't really have the ability to tell if something's like differentially more or less value, but you know, up to 100% of a taking, but they can, they seem like they can tell when something is a taking, like when there's no economic use, fully deprived.

And so I think that the reason why they're, even though it's a really harsh rule, they're sticking to it because they don't have a way to determine if something's just really, really close to being a taking, but they can see when something is a payment.

My understanding, my reading of it was while they say like, oh, it's going to be less profitable if we can only do the hand picking rather than the mechanical pricking, there's been no evidence as to like what sort of how much, like what sort of losses are you gonna use the tax.

So the court's just saying, well, you can't make a determination of the loss in value if there's no evidence as to how substantial that loss is.

So I think if you can go and make a calculation say I can harvest this much rice if I do hand picking versus with the mechanical picker and then do the math as to you know what your losses are then the court will consider that as evidence as to whether or not that's substantial because there's none of that here we can't make that argument.

Well that's certainly right but how is the state as a state court going to decide that?

I mean, I think it's even harder to determine because you're not weighing what you can make in the market with this versus that.

First you have to come to this conclusion that the property is primarily valuable because of the owner's ability to harvest rice mechanically.

Like that is the burden at the end of the opinion.

I mean, I don't know how you would assess that.

If there's what real estate tools or appraisals or property interests would go with that.

Yeah, I think an answer could be, you look at maybe the farmer's previous years where he was using the mechanical tools versus what he would project, his rice picking profits to be with his hands in the years to follow, and then you could say, what was your baseline profit?

If you are losing money, and you've lost all value of the property and it's a taking, and if you're still making money, albeit less money, then there is some still substantial use of the property and you would say, it's not a taking.

So it would be a baseline of mechanical versus by hand and weighing profits.

Yeah, again though, it comes down to the value of his property as a whole.

So like you could figure out what you could maybe figure out what you'd be losing in terms of the markets, but then you also have to take that market calculations and put it on top of his land that's around the lake and figure out, you know, like, whether the basis for like whether the basis for evaluating that land even included the market evaluation of you know being able to pick rice mechanically like this that's why it's like really hard to figure it out.

The fact that this statute makes it illegal to use these mechanical harvesters, like, coming to the capitalist at all, because if it's illegal and nobody can harvest rice with mechanical harvesters on public waters, how much is he really losing compared to the other people in that industry?

of difficult to do because you're gonna have to wait a little bit to be able to have that data.

Let me just call your attention to 1 feature of the case on page 755.

At the near the bottom of the of the case, It's like a land use regulation.

The bar on mechanical harvesting is valid unless it deprives Mr.

If that's what the court has to decide, the state courts have to decide, it's going to be very difficult to satisfy, at least as it appears to me, all, it has to deprive Mr.

I also don't feel like, I mean, we're going in circles a little bit here, but I don't feel like the court grappled with the fact that they say the water is not his land.

So if you're saying that's not his land, could harvesting on that necessarily ever be considered reasonable use?

I know he has preparing rights over it, but I feel like they continue to like money in the water, so to speak, as to like, whether he can even claim work on that land being part of the value or if them declaring it public sort of innately means he had no right to whatever income was coming from that in the first place.

I think that If he owned large parcels around the site, the land itself might have more value than just the access of those lighthouses, versus if maybe he owned a 10-foot strip of the shale line around the hillside, that might indicate that there's no further value of that land than just that.

There are some things that we say the government can regulate the use of the land for this purpose, like having a house of constitution.

And they don't say, well that's taking away the reasonable use of their property.

So therefore, if you have a house of constitution on your land, and the government doesn't pay you, if the government is saying, this is 1 way you can't use your land, you can't pay, you can use your land for other things like building a hotel.

It's reasonable that they remanded it to say, is there other reason for use?

I think it might be useful to point out that in Penn Central, where there's a restriction on building, building on land is a use that's inherent in land.

Here it's something just a use relating to the land.

It's like if someone was using his parking lot to park his Teslas and then the government said all Teslas have to be parked in a Tesla parking lot.

Is that value away from his land just because he happened to have used his parking lot for Tesla's probably not.

That has to be something that takes away all reasonable use as opposed to Penn central.

I'm not sure if that's like a superfine all of these though.

I feel like it's more comparable to something like Pennsylvania's pole where they purchased land because I mean again we're not quite one-to-one but the pole was in the ground whereas I imagine farmers, someone who's doing rice farming probably looks for a specific condition under which like the land is fertile for that particular trade.

And there's an innate, I imagine, agricultural value in having land where you can do your trade on it.

And so having that taken away from you, I imagine, to me, feels somewhat comparable to government regulations saying, hey, sure, you own all this land with subterranean coal, but now you can't take any coal.

To me, that feels pretty similar to saying you own this land that's perfect for rice paddy harvesting, but now you can't do that to the full extent.

I think it's a good point but if they had said you can't do rice at all that would be the same thing as no coal.

They just restricted it to a specific way of mining right So you have to use 1 way of mining.

It'd be nice to know the outcome of their remitting to see whether or not the handpicking actually hold any value to it or not?

Well, maybe we're beating a dead horse here.

I think it has not been an unprofitable exercise though, because it highlights, it brings to the fore the question that will seem to be determinative, which the federal court here deems determinative, whether all reasonable use of the property has been taken by the government regulation.

And The weight on the other side, I think, is something which we might explore a little bit more.

Why did the legislature pass this law in the first place?

They wanted to respect the rights of the traditional usages of the tribe.

So maybe we ought to encourage that more generally.

I like passing other kinds of laws that would encourage that as opposed to passing this law.

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Property (Helmholz) - Fall 2023