Oh No, They Can't Take That Away From Me: Eminent Domain Takes A Hit.

Thursday's Miami Herald reports that a Broward County judge has ruled that the City of Hollywood cannot take a small downtown business using eminent domain and convey it to a developer seeking to put together a $100 million project of condominiums and shops.

The City sought to take the property and considered expanding the tax base a public use.

According to the Herald, under recently passed legislation in the state of Florida, cities are severely restricted in using eminent domain in such cases. The legislation in question was signed into law by Governor Bush on 13 May of this year, and it was created largely in response to the Supreme Court's decision in Kelo v. City of New London last year.

Kelo makes for interesting reading, particularly in the "Who's for it and who's against it" heuristic analysis that many people use. In this case, the friends of the smallholder were the conservatives on the Court, and it's my opinion the dissenters had the better view, just as Mr. Justice Harlan's dissent in Plessy v. Ferguson was the better view of the issue, long term. I have not yet met a person who is familiar with the case who thinks that Kelo was a good decision.

Ultimately I believe that Kel0 was wrongly decided, the issue will be revisited, and the Supreme Court will reverse itself.



http://emdo.blogspot.com/

http://www.miami.com/mld/miamiherald/news/breaking_news/14878166.htm

Trail Rider Injured in Saddle Slippage Defeats Motion to Dismiss

Anker v. Wineglass Mountain Trail Rides, 2005 Mont. Dist. LEXIS 1465 (D. Ct, Mont. Nov. 9, 2005).

In this case a rider, injured when a saddle slipped and she fell off sued the operator in negligence. The trail ride operator in return filed a motion to dismiss for failure to state a claim.

The defendants argued that under the Montana equine activity statute sec. 27-1-725-6-7, Mont. Code. Ann. and a written waiver signed by the plaintiff they were immune from suit.

The court overruled the defendant's motion, observing that the plaintiff had alleged enough to state a claim in negligence, and that the Montana equine activity statute was designed to assist courts and juries in attempting to determine under what circumstances an equine operator might be liable, rather than a blanket immunity as the defendant argued.

Rider Injured in Fall From Horse Stung By Fire Ants Cannot Recover

Gamble v. Peyton, 182 S.W.3d 1 (Tex. Ct. App. 2005).

In this case a woman who bought a horse from Peyton mounted the horse while on Peyton's ranch and was thrown because the horse had been stung by fire ants, which Peyton had mentioned had been a problem on his ranch.

The landowner invoked the Texas equine activity statute to bar liability. The statute, contained in Tex. Civ. Prac. & Rem. Code. sect 87.003 (2005) provides an exemption from liability when injuries result from the inherent risks of participating in an equine activity.

The Gambles disagreed, arguing that a factual issue of whether a dangerous latent condition of land existed that precluded summary judgment, pointing to 87.004(3). The court noted that Gamble misread the statute which says "a dangerous latent condition of land", not "or land".

The court concluded by noting that a horse's natural reactions to other creatures is an inherent risk of equine activity, and affirmed the trial court's grant of summary judgment for the landowners.

Japan Drops Beef Import Ban

It was reported in the New York Times this day that the Japanese government has dropped its ban on beef imports from the United States under certain conditions, the most important of which is direct inspection by Japanese food safety inspectors.

Japan banned imports of U.S. beef in the aftermath of the discovery of BSE in cattle in this country. The ban was briefly lifted in 2005, but a shipment of beef from a plant in New York was found to contain backbone parts which could have contained nerve tissue. Brain and spinal column tissue parts are more likely to carry the disease causing agent than other parts.

The most important condition is that Japanes inspectors are going to directly inspect packing plants in the U.S. and can accompany U.S.D.A. inspectors on spot inspections.

This is good news for cattlemen, but it will probably take some time for exports to reach former levels.

http://www.nytimes.com/2006/06/21/business/worldbusiness/21cnd-beef.html?_r=1&adxnnl=1&adxnnlx=1150898585-XpggWGM3HW65dAUjYQlwrA&oref=slogin

The Natural World II: You're Gonna Burn.

It is reported today that a fast moving wildfire has laid waste to several thousand acres of the most beautiful land on G-d's planet, and that is in Oak Creek Canyon in northern Arizona.

Although I personally do not make much of the notion that Sedona is a hot spot of psychic energy forces like Berkeley or Fayetteville, Arkansas, it is still a remarkably pretty spot and a fine place to get out of the car, walk up a hill, sit under a pine tree and maybe drink some coffee out of the thermos and marvel on it all. The sunlight in the West is stronger, the air is clearer, the horizons go on forever and one cannot help but come away refreshed after spending a pleasant day in northern Arizona.

Of course, fire is also part of the renewal that nature mandates for the health of spaceship earth. It's reasonable to believe that this disfigurement will pass and that the Canyon will be more beautiful than ever in a few years, if that's possible.

http://www.kpho.com/Global/story.asp?S=5046751&nav=23Ku

Class One Appropriator Not Entitled to Extra Diversion

Fort v. Washington Dep't. of Ecology, 2006 Wash. App. LEXIS 1069 (Wash. Ct. App. May 23, 2006)

Fort was the senior appropriator on Beaver Creek in Okanogan County as successor to a class 1 right under a 1921 decree which established 18 classes of water rights. Fort also held class 8 and class 9 water rights, all at the same point of diversion.

In 2001, water in the creek became insufficient to meet all appropriator's needs and the state prohibited any diversion junior to class 5. Fort continued to divert water for his class 8 and 9 rights, and was assessed a penalty for his trouble.

Fort argued that since his point of diversion was downstream of the junior appropriators his actions were not contrary to the 1921 decree.

The court held that the adjudication decree was not affected by water or climatic changes might have, despite the change those influences might have on the quantity of available water.

Race Horse Training Not an Agricultural Purpose

Seward County v. Navarro, 2006 Kan. App. LEXIS 482 (Kan. Ct. App. May 19, 2006)

The county moved to enjoin the defendants from further use of their property as a horse training facility, and the defendants responded that training race horses is an agricultural purpose. The defendants also argued that their preexisting use as a racehorse training facility trumped the county's regulation.

The Kansas Court of Appeals held that training horses for racing is not an agricultural purpose that would exempt it from the county's zoning regulations. However, the court remanded the case for consideration as to whether the Navarro's use predated the county's ordinance.

Landlord Potential Liability for Tenant's Nuisance

Tetzlaff v. Camp, 04-1499 (Iowa June 2, 2006).

Pangborn owned land that Camp farmed under an informal agreement. Camp, proprietor of a hog operation, spread manure on his land and on the field he farmed with Pangborn's consent. The field was close to the Tetzlaff residence

Tetzlaff complained to Pangborn about Camp's practices but Pangborn then purchased more land adjacent to the Tetzlaff residence and had Camp apply manure to that field as well. Tetzlaff sued Pangborn and Camp under a nuisance theory, but the trial court granted summary judgment to Pangborn, concluding he did not substantially control the activities of his tenant.

Limiting its decision to whether Pangborn should have been granted summary judgment, the court made no finding on the nuisance action. The court held that although the general rule is that a landlord is not liable for the tenant's nuisance, under the Restatement (Second) of Torts sec. 837, a lessor can be held liable for a tenant's nuisance if the lessor would be liable had he conducted the activity himself and he consents to the activity or knows or should have known the nuisance would be carried on, and he knows or should know the activity is causing a nuisance.

The court concluded that under the peculiar circumstances of this particular case and this particular landlord, a sufficient factual issue was generated to prevent summary judgment in favor of the landlord.

The takehome from the case is clear. Landlords should not expect that they can be insulated from the consequences of the nuisances of their tenants, if they have any involvement in the nuisance causing activities at all.

Action on an Equipment Lease Time Barred after Four Years

Frontier Leasing Corp. v. James River Country Store, 05-0953 (Iowa Ct. App. May 24, 1006)

Frontier's predecessor in interest, Liberty, leased an ATM machine to James River in 1999. Part of the lease stated certain conditions which constituted a default on the lease, among which was if one of the guarantors died. Roberts, a guarantor, died early in 2000 and James River stopped making its lease payments in April 2000.

Credit Card Center, the supplier under the lease, made four further payments on behalf of James River, two in June 2000, one in August 2000 and one last payment in December 2000. Liberty considered the lease to be in default as of January 2001.

Frontier sued James River on the lease on September 30, 2004. and the district court entered an order of dismissal on the defendant's motion, finding the suit was time barred under the 4 year limit of Iowa Code Ch. 554.13506.

The district court found that the first default triggered the time limit of the statute of limitations, although there were other defaults that followed.

The Court of Appeals affirmed the trial court.

Two points of information should be significant to farmers and agriculturalists who lease equipment.

First, it was of no significance that the original lessor did not consider the lease to be in default until January 2001.

Second, the statute of limitations begins to run when the first default according to the terms of the lease occurs.