Eminent Domain: Taking On Water In Ohio

City of Norwood v. Horney, 2006 Ohio 3799 (Ohio July 26, 2006)

In a unanimous decision that shakes the foundations of the U.S. Supreme Court's infamous Kelo v. New London decision, the Ohio supreme court has ruled that using eminent domain to confiscate private property and transfer it to a developer simply because it confers an economic benefit to the community does not satisfy the 'public use' requirement of the Ohio Constitution.

Homeowners in the city of Norwood, Ohio lived in a neighborhood that had undergone substantial changes in the decades preceding this action. A private developer approached the city with a redevelopment plan and urged the city to use eminent domain to condemn and acquire the property of homeowners. The city recommended that the developer acquire the property on the open market, but the effort was not completely successful.

The city hired a consultant who determined the neighborhood was 'deteriorating' as that term is defined in the city code. The city then filed actions against the property owners for condemnation. A trial court upheld the city's action and the developer acquired the titles and began demolition.

In response to the Kelo decision and a ground swell of public opposition, Ohio enacted legislation which created an eminent domain task force to study the matter, and imposed a moratorium on takings of a nature such as the instant case.

The court ultimately found that the trial court erred in giving deference to the city's code's use of 'deteriorating area' as a standard because that term actually had no definition and did not provide the property owners with fair notice. Because Norwood could not justify the taking for public use on the 'deteriorating area' standard and because it could not justify a taking for economic benefit, the trial court and appeals court decisions affirming the taking were reversed.

Although we here at Law Down On The Farm admit of public necessity, we also think that the twin furies of the power of eminent domain coupled with a love affair with anyone who comes into town with a stack of blueprints and a good story has been too much for cities to refuse. It is, as the phrase has it, the very legerdemain.

It has also been more temptation than cash strapped governments could ordinarily resist. However, there comes a point at which the power of government to evict one property owner in favor of another with a larger bankroll must halt. This, it seems, is one of those times.

Let us hope that this decision is merely the first rumbling of a faraway storm that unseats and then discards this unhealthy rendition of the power of eminent domain.

Sleepless in Doha: The Takehome

By now, nearly everyone except a few people who've been locked up in a submarine under the polcar ice cap know, the Doha round of World Trade Organization talks foundered on the subject of farm subsidies and whether they could be eliminated or mitigated, so as to free up market access for third world farmers.

There are as many levels of complexity to this debate as there are uninformed opinions on the subject. There are first, definitional problems. What is a 'subsidy' anyway? Is it a cash payment to sit on the porch and watch the sun go down over the barn, or is it a price support system such as those on commodities in the U.S.? How do we establish a level of equalness that allows us to negotiate meaningfully with the Europeans (read the French)? And if that modus vivendi can ever be reached, what are we negotiating for and what are we giving up?

It's easy to say Free trade si! Subsidies no! but the notion that a decline in subsidies will automatically produce an equal and opposite benefit for the downtrodden third world farmers in their loincloths is a mistaken one.

One of my colleagues in India informs me that because of the generally small holdings there, the average farmer sells the grain he produces to a middleman, who pays as little as he can get away with, rather than whatever the CBOT says that number 2 hard wheat should bring today less transportation. Oftentimes, the middleman buying the grain is also the village moneylender, who holds the smallholders in thrall with ruinous interest rates that would make one of Joe Profaci's loan sharks blush.

This situation is not conducive to bringing benefits to the small farmer in the third world, and if that's the objective, agricultural law reform in the third world should be the order of the day, but it's not on the table.

Another point not considered in the debate is that we have world markets for grain and commodities. The price is the same in the pit in Chicago as it is on the dock in Marseilles as it is on the dock in South Africa as it is on the wharf in India. Because the agricultural sector is so powerful in the US, when we sneeze the world catches cold, like it or not. Anything that supports prices in the US tends to support world prices as well, and that means everyone benefits from the largess of the U.S. government farm programs-unless they're in thrall to the village moneylender who isn't inclined ot share the wealth.

Parallel to this is the apparent issue of whether we in the west ought to put this on the table without getting anything in exchange from the developing world, such as access to markets for our industrial products and the reduction of tarriffs in those countries.

I'm not entirely sure where this whole subject is taking us, but we will be watching it closely.

Disputed Title to Reservation Lands Survives Motion to Dismiss

Gila River Indian Community v. Winklemann, 2006 U.S. Dist. LEXIS 33276 (D. Ariz. May 22, 2006).

In this case, the defendant Arizona commissioner of state lands granted one Clark a permit to operate an apiary on land which both parties claim. The state claimed that the 640 acre property was school trust property granted to it by Congress and the tribe contends that they have an unextinguished aboriginal land title to the same section of land.

The tribe sued to enjoin the encroachments of the commissioner and the apiarist. The defendant moved to dismiss the action on numerous grounds, including sovereign immunity, failure to join indispensible persons, and extinguishment of title.

The court denied Winklemann's motion to dismiss, finding that there was a factual dispute that prevented decision on the issue of extinguishment of title, and that the United States and the State of Arizona were not necessary parties to the action. The court also found that the suit could go forward under the exception to sovereign immunity found in Ex parte Young, 209 U.S. 123 (1908).

Keeping Horses Not an Agricultural Activity

In re Tavalario, 2006 N.J. Super. LEXIS 183 (N. J. June 27, 2006)

Tavalario challenged a state Agricultural Development Committee decision that his keeping of horses on a 7-1/2 acre property in Gloucester County did not constitute an agricultural activity that would exempt him from certain land use and zoning restrictions under New Jersey's Right to Farm statute.

The township had changed the zoning scheme for the property from agricultural use to residential zoning requiring a variance to practice agriculture on it prior to Tavalario buying the property and locating horses on it.

The SADC decision, affirmed by the supreme court, found that Tavalario could not show income of $2,500 per annum from his activities, either present or in the form of contingent contracts, that would allow him to meet the threshhold requirements for exemption under the statute.

Lack of Polaroid Factors Sends Spirutein Down For the Count

Natural Organics, Inc. v. Neutraceutical Corp., 2006 U.S. Dist. LEXIS 46057 (D. N.Y. July 7, 2006).

Natural Organics sued Neutraceutical, alleging that the defendant's Soytein drink mix improperly infringed on the trade dress of the plaintiff's Spiru-tein soy drink mix.

After a loss at the trial, Natural Organics' appeal resulted in a remand to apply the specific test set out in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961), to wit: 1) strength of plaintiff's trade dress, 2) similarity of the trade dresses, 3) proximity of hte products in the marketplace, 4) likelihood that the plaintiff will bridge the gap between the products, i.e., enter a market related to that in which the defendant sells its product, 5) evidence of actual confusion, 6) defendant's bad faith, 7) quality of the defendant's product and 8) sophistication of the relevant consumer group.

Applying the factors, the court again dismissed the plaintiff's action with prejudice.

This case points out the difficulties that producers of food products face in a highly competitive market where the products are in competition for the same customer base.

Man Tanks Up On Ethanol: Employer Not Amused

Well, it had to happen.

It was reported in yesterday's Register that a fellow who worked for Amaizing Energy, an ethanol producer in Denison, was fired from his job for personally road testing the product with his liver.

Cory Neddermeyer, a recovering alcoholic, showed up for work back in April at the Amaizing Energy plant and saw that there had been a spill of fuel grade ethanol at the plant and several hundred gallons of the stuff were in a holding pond. After some thought Neddermeyer proceeded to sample some of the fuel grade ethanol, a/k/a Everclear. It worked so well that Neddermeyer was found in an incapacitated state and was rushed to a local hospital, where his blood alcohol level was an astounding 0.72.

He was, of course fired, and appealed the denial of his unemployment benefits, arguing that the employer was discriminating against him because he is an alcoholic. Needless to say, his appeal was denied.

http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=/20060709/NEWS10/607090341/-1/archive

From the "Things We Knew Already" Department.

In the June 4 edition of Time, we found an article entitled "The Magic of the Family Meal". The author tells us that regular reliable family dinners are where, it is said, kids benefit from the communication and interaction and exploration of ideas they just do not get in the drive up lane at Mickey Dee's or slinging a frozen pizza in the microwave.

Further, it is shown that in this sort of environment, kids reap the benefits in adolescence as they're less likely to smoke, drink, use dope, get depressed and suicidal develop eating disorders (although we here at Law Down On The Farm have always considered eating at fast food outlets something of an eating disorder) and so on. Studies by respected research institutes demonstrate clearly what has been self evident to anyone with eyes and ears, that things have changed since the advent of the microwave and the drive up lane, and not for the better.

When the idea of wholesome cooking for the family became anathema to Mother and Father and such practices were disparaged by their contemporaries and the media as lame demeaning drudgery, something was lost that is very difficult to regain. So say the professors and the savants.

It's a lot easier to figure than that. Go to the supermarket and have a look at what's in people's carts, and then look at the people pushing them.

I'll bet my last Confederate dollar that the people who look like they're going to be doing some righteous cooking for the family are a lot more relaxed bunch than the scrawny folks with one container of yogurt and a broccoli stalk, to be consumed alone in an empty room. Well, they can have it-give me the groaning board and good friends and family all around, even if I'm getting a little broad in the bottom these days.

Common sense will tell you that far from being a hated chore, good home cooking was a matter of some pride to folks when I was a youngster (and one heckuva feather in the caps of those who did it), and it offered an opportunity for the exchange of ideas and, dare I say it, the kind of love and companionship that people are so starved for? We're so damned busy trying to be hardbody, rising executives that we forget what's been there all along-preparing, eating and sharing food is a pleasant thing-it's also a social and political statement about the kind of world you want and the kind of folks you want the kids to grow up to be.

http://www.time.com/time/magazine/article/0,9171,1200760,00.html

Alligator Growing Operation Not A Farm

Gill v. Prehistoric Ponds, Inc., 2006 Ga. App. LEXIS 671 (Ga. Ct. App. June 8, 2006).

A worker at the defendant's alligator growing operation was bitten by one of the pugnacious critters and contracted osteomyelitis and salmonella. The worker's claim for workmen's compensation benefits was denied because the administrative law judge hearing the case concluded that he was a 'farm laborer' and that the defendant was engaged in farming and thus exempt from the Georgia workmen's compensation statute.

On appeal, the court of appeals held that alligator growing is not farming, because the ALJ had improperly considered them livestock, which is a defined term. Alligator growing operations are regulated by the Department of Natural Resources and alligators are considered game animals.

The court of appeals concluded that although the plaintiff was performing agricultural labor, his employer was not a farm because alligators are not considered livestock, and thus the employer was not exempt from the workmens' compensation statute.

Gross Negligence Trumps Equine Activity Statute

A couple of recent cases from Michigan involving equine activity statutes point to the creative use of exceptions to the general rule of non liability in states that have an equine activity statute.

In Hawkins v. Ranch Rudolph, Inc., 2005 Mich. App. LEXIS 2366 (Mich. Ct. App. September 27, 2005), two plaintiffs went on a horse ride at a dude ranch and executed the standard release of liability under the state's Equine Activity Liability Act. The plaintiffs selected a ride that was to be rather gentle given that one of the plaintiffs had never ridden a horse before. As the ride progressed, the person conducting the ride urged the riders to go a little faster which they assented to.

At that point the horses bolted and one of the plaintiffs' saddle slipped and he fell and was injured. The trial court granted summary judgment for the dude ranch, and the plaintiffs appealed. The court of appeals found that the issue of whether the conduct of the dude ranch constituted gross negligence and thus escaped the reach of the EALA and the release the plaintiffs admittedly signed was one on which reasonable minds could differ and remanded the case for further proceedings.

In Terrill v. Stacy, 2006 Mich. App. LEXIS 522 (Mich. Ct. App. February 28, 2006), a rider was riding a horse at a dude ranch and the horse bolted, throwing the rider and injuring her. The bit broke, and she alleged that failure to properly inspect the bit proximately caused her injuries. The defendants held up the signed EALA release and moved for summary judgment, which the trial court granted, not allowing the plaintiff to amend her claim to include gross negligence.

The court of appeals affirmed the trial court summary judgment, finding that the release was in the nature of a contract that was ambiguous only if the language was reasonable susceptible to more than one interpretation. Amending the complaint to allege gross negligence would have been futile in the court's view.

The takehome from these cases clearly demonstrates that the courts in Michigan are ready to look at the issue of gross negligence as an exception to the rule of nonliability in the state's Equine Activity Liability Act, if it is properly pleaded.

Taking a Bite Out of the Foreign-Natural Rule in New York

Rudloff v. Wendy's Restaurants of Rochester, Inc., 2006 N.Y. Misc. LEXIS 1502 (N.Y. Civ. Ct. June 8, 2006)

A diner at a Wendy's restaurant broke a tooth on a double cheeseburger and filed suit for personal injuries sustained in the occurrence. Because the plaintiff alleged that he had swallowed the offending portion it could not be determined whether the object was 'natural' to beef like bone or gristle, or whether it was 'foreign' such as a piece of metal, or whether it came from the bun, the cheese, or from some other source. The diner sued under theories of strict liability, negligence and implied warranty.

Wendy's moved for summary judgment, alleging that there was no proof of negligence in its preparation of the double cheeseburger and that the plaintiff, not being able to prove whether the object was not natural to a cheeseburger, could not argue a breach of implied warranty.

The court found that although Wendy's could show that they had not negligently prepared the cheeseburger patty, they could not show that they had exercised the same degree of care with respect to assuring that the preformed patties they bought were free of such defects.

Turning to the strict liability assertions, the court found that the plaintiff had met his burden that the patties did not perform as intended.

In discussing the implied warranty claim, the court found reason to visit the 'foreign-natural' rule, holding that the 'foreign-natural' rule was not the proper test for what happened and also that it was not a complete bar to the action.

The court also noted that even had the 'foreign-natural' rule survived the adoption of the Uniform Commercial Code, it was of no avail to Wendy's because the correct measure is what the consumer reasonably expects. The nature of the object and how the food was prepared should be factors but not the sole determinant of liability.

Owner of Bobcat Violates Restrictive Covenants in Housing Development

Lineberry v. Riley Farms Property Owners Ass'n., 2006 Ark. App. LEXIS 393 (Ark. Ct. App. May 24, 2006)
A woman purchased property in a subdivision which had restrictive covenants that prohibited property owners from keeping exotic animals, and also required those who wished to fence their property to have the fence approved by the Association's Architectural Control Committee.

The plaintiff in error applied for permission to build the fence, and about that time it became known she had a bobcat. She was asked to remove the bobcat and set her fence back from the property line, but did neither, and a complaint was filed in the county court. A jury returned a verdict for the Association and the court ordered the landowner to pay substantial attorney's fees.

The landowner argued that the determination of 'wildness' should be made on a case by case basis, but the appellate court found that the trial court's use of the Restatement (Second) of Torts sec. 506 definition, although arguable, was supported in law and not an abuse of discretion.

Horse Owner Convicted in Moving Animals Under Quarantine

People v. Talaske, 2006 Mich. App. LEXIS 1129 (Mich. Ct. App. April 11, 2006)

In this unpublished opinion from Michigan, Talaske, an owner of 14 horses, was convicted of four felony counts of moving animals in violation of a state department of agriculture quarantine. His horses were boarded at a farm where the manager was given written notice of quarantine because the horses had not received tests for equine infections anemia (EIA). Talaske was acting pursuant to an eviction by the owner of the stable at which his horses were boarded, and he removed them the day before the court sitting in the eviction order required him to.

Talaske argued that he was never personally served with a quarantine notice, and that such is a necessary element of the violations he was convicted of. The court disagreed, holding that the statute was unambiguous, and the defendant could not avoid the reach of the statute by reading into it a notice requirement that was not there.

This is a troubling outcome to such a case where an animal owner acting in response to the order of one court runs afoul of another, even though he may have had oral notice of the necessary testing-one suspects that Talaske was between the proverbial rock and a hard place.

The takehome has to be that making absolutely sure you're on solid ground with regulatory authorities is a necessary precondition to moving animals when one is not regularly in that line of business or knowledgeable in the field. A little research can prevent a carload of heartache and bad consequences.

EIA is a serious illness that has substantial adverse health effect potential for equidae. A good resource may be found at the following Utah BLM website.

http://www.ut.blm.gov/HorseEIA/horseia.html