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Unpublished Paper
No More Free Easements: Judicial Takings for Private Necessity
ExpressO (2011)
  • John Martinez
Abstract

In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 130 S.Ct. 2592 (2010), the United States Supreme Court was one vote short of recognizing "judicial takings" as viable federal constitutional claims. If such claims become available, then we must identify with precision those circumstances in which judicial takings claims should apply. The full panoply of remedies--forced condemnation, injunction, and interim damages--must be considered. This article begins the discussion with what perhaps are the easy cases, in which governmental judicial conduct imposes a permanent physical occupation on private land based solely on the private necessity of the benefitted party. The article suggests that the law of takings requires payment when a court declares that an easement should be established because of private necessity.

Keywords
  • judicial takings,
  • implied easements,
  • just compensation,
  • takings,
  • inverse condemnation,
  • property rights
Disciplines
Publication Date
March 15, 2011
Citation Information
John Martinez. "No More Free Easements: Judicial Takings for Private Necessity" ExpressO (2011)
Available at: http://works.bepress.com/john_martinez/2/