Today is Saturday, December 20, 2014   11:26am EST
JLCNY
Landowner-Lawsuit-Donations

Just What is a Taking

1 1 1 1 1 1 1 1 1 1 Rating 0.00 (0 Votes)

I suspect that although New York has been careful to not ban the use of our land outright, that  none the less they are walking a razor edge as they deprive us of the right to use our land. One would think that this would be especially so while other states across the nation are not denying their landowner rights to drill horizontally and then hydraulically fracture the casings. There is no history of issues, just the dark fears of a group of one topic zealots with lots of money generously spreading their fear. Not being a lawyer, I do not know when we New Yorkers will be deemed to have had a taking, but assure you I will be in the line contributing funds for the lawsuit. .JLCpulse

From Findlaw.com

NATIONAL EMINENT DOMAIN POWER

Overview

''The Fifth Amendment to the Constitution says 'nor shall private property be taken for public use, without just compensation.' This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power.'' 160 Eminent domain ''appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.'' 161 In the early years of the nation the federal power of eminent domain lay dormant, 162 and it was not until 1876 that its existence was recognized by the Supreme Court. In Kohl v. United States 163 any doubts were laid to rest, as the Court affirmed that the power was as necessary to the existence of the National Government as it was to the existence of any State. The federal power of eminent domain is, of course, limited by the grants of power in the Constitution, so that property may only be taken for the effectuation of a granted power, 164 but once this is conceded the ambit of national powers is so wide- ranging that vast numbers of objects may be effected. 165 This prerogative of the National Government can neither be enlarged nor diminished by a State. 166 Whenever lands in a State are needed for a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the State, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the State. 167

 

''Prior to the adoption of the Fourteenth Amendment,'' the power of eminent domain of state governments ''was unrestrained by any federal authority.'' 168 The just compensation provision of the Fifth Amendment did not apply to the States, 169 and at first the contention that the due process clause of the Fourteenth Amendment afforded property owners the same measure of protection against the States as the Fifth Amendment did against the Federal Government was rejected. 170 However, within a decade the Court rejected the opposing argument that the amount of compensation to be awarded in a state eminent domain case is solely a matter of local law. On the contrary, the Court ruled, although a state ''legislature may prescribe a form of procedure to be observed in the taking of private property for public use, . . . it is not due process of law if provision be not made for compensation. . . . The mere form of the proceeding instituted against the owner . . . cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation.'' 171 While the guarantees of just compensation flow from two different sources, the standards used by the Court in dealing with the issues appear to be identical, and both federal and state cases will be dealt with herein without expressly continuing to recognize the two different bases for the rulings.

 

It should be borne in mind that while the power of eminent domain, though it is inherent in organized governments, may only be exercised through legislation or through legislative delegation, usually to another governmental body, the power may be delegated as well to private corporations, such as public utilities, railroad and bridge companies, when they are promoting a valid public purpose. Such delegation has long been approved. 172

Public Use

Explicit in the just compensation clause is the requirement that the taking of private property be for a public use; the Court has long accepted the principle that one is deprived of his property in violation of this guarantee if a State takes the property for any reason other than a public use.

The attached address will take you to the reference document

Attachments:
URLDescriptionFile size
Access this URL (http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html)14.html 0 kB

This content has been locked. You can no longer post any comment.

Copyright © 2010-2014

JLCNY is not responsible for the content of linked third-party websites, third-party advertisements, or user posted content. User posted content does not express the opinions of the JLCNY. JLCNY does not endorse any banner advertisements. Advertising on the JLCNY site does not mean that the advertiser endorses the views and opinions of the JLCNY.

Joint Landowners Coalition of NY
PO Box 2839
Binghamton, NY 13902

IP: 54.167.182.201
Country: United States