Property Owner Wins Eminent Domain Battle

ROMULUS, Mich. — The sign at the edge of Romulus, Mich. (search) proclaims: "Industry and its citizens working together." But try convincing cabinet shop owner Ed Hathcock.

Hathcock's property abuts Detroit's airport where the county had planned a 1,300-acre industrial park. But when Hathcock turned down the county's buyout offer, the local government made a play to take his land to use on the project.

The Supreme Court of the United States (search)' recent ruling that local governments can seize private property for private economic development has put the affected property owners across the country in a fighting mood, but those in favor believe taking property is justified if it suits the public good.

The majority of landowners accepted Wayne County's buyout offer for the industrial park, but Hathcock claims he got a raw deal.

So the county took him to court to seize his land, wielding its power of eminent domain (search). Hathcock lost in two lower courts but won a ruling last year in Michigan's Supreme Court.

"Every American believes that ... they have sanctity in their land, that holding land is a right and that it's not a right that can be alienated by a politician because he feels he has a better use for it," Hathcock said.

Hathcock's victory reversed two decades of legal precedent in Michigan and made the state's eminent domain laws among the strictest in the nation. For a government to take land from a private property owner, it has to be for public projects only, such as road construction or for parks.

... A company says, 'Do I locate in China or do I locate in the Midwest? What are the advantages that I have?' One of the biggest advantages is being able to assemble land," Fiacano said.

Now you got me going! (Oh well. My car’s in the shop for the next day or so.)

Found this very interesting case: http://www.quatloos.com/taxscams/protcase/britt.htm

George M. BRITT and Anita C. Britt, Plaintiffs-Appellants,
v.
FEDERAL LAND BANK ASSOCIATION OF ST. LOUIS, Yorkville National Bank,
John Doe, Jane Doe and All Unknown Parties, Defendants-Appellees.
No. 2-86-0248.
Appellate Court of Illinois,
Second District.
March 11, 1987.
The judge threw the book at them!

Under common law tradition, all private titles since Norman times have originated from title held by the sovereign. (1 Tiffany, The Law of Real Property s 13 (2d ed. 1920).) The seminal opinion in American jurisprudence analyzing the origin of sovereign titles and setting forth the principles by which conflicting title claims based upon competing sovereignties was authored by Mr. Chief Justice Marshall in Johnson & Graham's Lessee v. M'Intosh (1823), 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681. There, Chief Justice Marshall outlined the means by which sovereigns acquire title (conquest, cession and treaty) and stated that by the Treaty of Paris in 1783: "[T]he powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to the states." Johnson & Graham's Lessee v. M'Intosh (1823), 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681, 691.

This sovereign title, which is absolute and encompasses on the part of the sovereign authority both ownership of the land and the right to govern the inhabitants thereof, is "allodial" title.

(My notes. Notice again, this is an institutional title, not an individual property right.)

This term is used in contradistinction to the term "fee simple title," which contemplates the highest title which may be privately held. (1 Tiffany, The Law of Real Property ss 6 and 13 (2d ed. 1920).) Fee simple title may freely be alienated by conveyance, mortgage or devise but still be subject to some claim of the sovereign. (1 Tiffany, The Law of Real Property ss 6 and 13 (2d ed. 1920).) In current usage, the holder of fee simple title is still subject to dispossession by the government, through due process of law, for nonpayment of real estate taxes and by eminent domain proceedings. The only correct premise supported by authority in the Britts' brief is that land held by the Federal government is not subject to the acts of the States. (Cf., Gibson v. Chouteau (1871), 80 U.S. (13 Wall.) 92, 20 L.Ed. 534; Clackamas County, Oregon v. McKay (D.C.Cir.1955), 226 F.2d 343.) What is totally incorrect is the implicit foundation of the Britts' position: that the land patent issued to "James Evans" and "Francis Evans" in 1841 conveyed the entire title of the Federal government, such that no interest arising by operation of State law can attach to the title.

(My notes, Ernest, Here’s the answer to your question: )

[A land patent is merely the deed by which the government passes fee simple title of government land to private persons. (63A Am.Jur.2d Public Lands s 70 (1984).) Once fee simple title is passed to an individual from the government, whether by land patent or otherwise, claims arising from conveyance or mortgage by that holder will be enforced against him. (Cf., Stark v. Starr (1876), 94 U.S. (4 Otto) 477, 24 L.Ed. 276; United States v. Budd (1891), 144 U.S. 154, 12 S.Ct. 575, 36 L.Ed. 384; see also 63A Am.Jur.2d Public Lands s 92 (1984).) Where, as here, a decree of foreclosure and sale has divested title from the former mortgagor, the mere fact that the mortgagor's claim of title may run directly back through his family to a 19th century patent is of no consequence.

The assertion in the Britts' brief that they hold "fee simple allodial title" is untenable. The Britts have never held sovereign title and now have been divested of their fee simple title by due process of law in the foreclosure action.

(Notice that the court upholds the position that the former owners did not have “sovereign title” they had “fee simple” title.)

The purported "perfected patent" filed by the Britts matches the description of similar documents filed in other States. In Wisconsin v. Glick (7th Cir.1986), 782 F.2d 670, the Seventh Circuit Court of Appeals described these "new land patents" in the following terms: "People saddled with mortgages may treasure the idea of having clean title to their homes. The usual way to obtain clean title is to pay one's debts. Some have decided that it is cheaper to write a 'land patent' purporting to convey unassailable title, and to file that 'patent' in the recording system." 782 F.2d 670, 671-72.

The "new patent" or "perfected patent" theory asserted on appeal, as it relates to the original patents, is also defeated by the estoppel effect of the foreclosure judgment. To the extent that the new theory may be construed as a separate and independent claim, it will be accorded the same treatment by this court that it has been accorded by the district courts of Indiana, Wisconsin and Minnesota and by the United States Court of Appeals for the Seventh Circuit. It is frivolous and without basis and should not be raised in the circuit courts of this State.

Defendant, Federal Land Bank Association of St. Louis, has moved in this court for the imposition of sanctions against plaintiffs and Robert L. Collins, their counsel. The motion, filed August 1, 1986, was ordered taken with the case. No objections to the motion have been filed, and the time for objections has long since passed. 103 Ill.2d R. 361(b)(2).

The gravamen of defendant Bank's motion is: "That Plaintiffs' complaint, as signed by their attorney, alleged allegations which were made without reasonable cause and are frivolous and unwarranted. In substance, the thrust of their complaint to quiet title is purportedly grounded on a [sic] Plaintiffs' 'allodial' fee simple title emanating from 'land patents' from the Plaintiffs for the benefit of the Plaintiffs.

* * * That the Plaintiffs' complaint and attorney Robert L. Collins' conduct in signing, filing and attempting to prosecute it, hinders the judicial process and constitutes a gross waste of judicial resources requiring the court to deal with patently frivolous law suits instead of addressing those suits on its docket which have merit and deserve close scrutiny."

Be careful out there!

A little more on homesteads. One of the provisions of the Homestead Act was:

"SEC. 4. And be it further enacted, That no lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor."

When you hear of someone “homesteading” their property, depending on state law, it means their property is protected from claims on unsecured debt. It does not protect property from foreclosure or taxes.

Bump. Thanks for this post. Bravo!

It is great to see Americans so aware of, & energized in defense of, private property rights by addressing threats, this terrible precedent (Kelo v. New London), and becoming aware of the downside of activist Judges. I have been concerned with both of these related issues for about a decade. I even had brief, separate, conversational encounters with two of the "good" Justices (Scalia & Thomas) in the Kelo case about 6 or 7 years ago re: "The Takings Clause" of the 5th Amendment designed to protect private property from arbitrary seizures, but providing for Eminent Domain for certain "public use" (NOT "public purpose") . It was clear they were anxious to see some good cases walk toward them. I doubt if they would have predicted the bizarre outcome in Kelo, though.

For those of us who are deeply concerned with protection of Private Property from improper application of Eminent Domain in contravention of the Original Intent of the Founders in the 5th Amendment's Takings Clause, I am registering a warning or a concern:

I think AG (& potential USSC Nominee) Alberto Gonzales is very weak on Private Property Rights and lacks an understanding of orignainl intent of the 5th Amendment's Takings Clause (Eminent Domain) based both upon some cases when he ws at the texas Supreme Ct. (e.g., FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000))

and, more recently and significantly, upon his NOT having joined in the Kelo case on the side of property owner. My understanding ws that he had sided with the League of Cities against Kelo while WH Counsel.

As some have frequently observed, he certainly believes in a "Living Constitution" and is NOT a strict constructionist or an Originalist, but rather tends toward the Activist side, per National Review Online and others.

He has been sharply critical of Priscilla Owen in some Texas Supreme Ct. decisions when they were both on that Ct. as Justices, and he has been quoted as being sharply criticial fo Janice Rogers Brown, including being quoted by People for the American Way in their ultra-leftist propaganda.

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