The story of humble homesteaders being forced off their land by the continental expansion of the railroad in the late 1800’s has been told in many a western. Including 1939’s “Jesse James”, directed by Henry King with glam king Tyrone Power as Jesse. In real life Jesse James was more Rat Boy than Robin Hood gone wrong. Still– the truth was out there. The Iron Horse did rampage over many people who were just trying to get along. And according to Gideon Kanner, Professor of Law Emeritus at the Loyola Law School in Los Angeles, that rampage still resonates in our current epidemic of eminent domain abuse.

On October 14th, Professor Kanner, who edits the eminent domain law periodical Just Compensation, addressed the 10th annual National Conference on Property Rights in Albany, New York. The conference was organized by the Property Rights Foundation of America. Professor Kanner’s topic was the past, present and future of eminent domain– the constitutional right of government to take private property for “public use” if “just compensation” is made. Few people doubt there are appropriate uses for eminent domain. (Think schools & hospitals.) But the devil is in the details of “public use” and “just compensation”. Professor Kanner believes both terms tend to be “panoramic expressions” rather than actual practice. In other words, more like a John Ford film than a slice of frontier life.

According to Kanner, land takings executed by government in the late 19th century on behalf of privately owned railroads, corrupted the use of eminent domain by confusing the relationship between “public taker” and “end use”. As for just compensation, there was much resistance to paying property owners anything, let alone what their land was actually worth. Public officials huffed that hold-outs shouldn’t be allowed to embargo the state and stand in the way of progress. An attitude which translated into judicial contempt for the claims of people reluctant to leave homes and businesses, or surrender their property on the cheap.

By the beginning of the 21st century, the government’s power of eminent domain had been enhanced by a string of U.S. Supreme Court decisions (most recently, Kelo v. City of New London) and the overall expansion of the state. As government became more entwined with private enterprise, the definition of public use continued to blur. With projected “trickle down” economic benefits substituting for actual public use. But what hasn’t changed is the attitude of public officials– they still huff that recalcitrant owners shouldn’t be allowed to embargo the state and stand in the way of progress. A sentiment now echoed by quasi-public redevelopment agencies, urban planners, and government backed developers.

The Sweet Here & Now

Professor Kanner also covered the current condition of eminent domain in New York State. Calling the state “a sewer when it comes to abuse of eminent domain for private use”. Kanner was preceded by speaker Jim Malatras, Legislative Director to New York State Assemblyman Richard Brodsky. Jim Malatras had given a rather upbeat account of efforts in the assembly to reform the state’s eminent domain laws, but Kanner seemed cynical about the outcome. Reversing the stereotype of jaded New Yorkers and sunny Californians.

Professor Kanner cited a number of factors that make the Empire State the “sub-basement of eminent domain law”. For instance, eminent domain cases aren’t tried before juries. (Would peers prove too simpatico?) And in other states, judges who hear eminent domain cases come from rotating pools, giving attorneys and clients better chances for favorable rulings. Whereas in New York courts, one judge hears all the eminent domain proceedings. Professor Kanner also had a few choice words on the general subject of how New York’s justices are chosen. Referencing a recent New York Times article which essentially depicted local old boys tapping each other on the shoulder and saying “Hey podner, wanna be a judge?”

Because of New York’s locked-up legal system re eminent domain, the number of attorneys specializing in contesting abuse is far smaller than in many other states. A shame because New York State rates high on the contempt-for-homesteaders meter. Until recently, governments weren’t required to give much notice of an intended “taking”. (A nicety that can still be forgotten in the heat of a revitalizing moment.) Then there’s the greed thing. Listen up Manhattan dwellers. Professor Gideon Kanner answered a question oft asked in the canyons: how come so many thriving neighborhoods get plowed under by eminent domain in the name of redevelopment? Kanner quoted bank robber Willie Sutton. Who when asked why he robbed banks replied “because that’s where the money is.”

But Professor Kanner wasn’t all vinegar and no sugar. While he thought the possibility of eminent domain reform at the judicial level in New York State was hopeless, he did allow the state legislature “might be susceptible”. Though he mentioned that in general, legislatures are used to seeing public anger dissipate.

If eminent domain abuse weren’t on the rise, public anger might indeed diminish as Kanner suggested, and legislators could relax on their contributions. But more and more people feel threatened by government land grabs. If meaningful reforms aren’t enacted, the pot could boil over. Speaking of which, Professor Kanner pointed out that eminent domain abuse in the name of urban renewal was one of factors which led to the 1960’s Watts riots in Los Angeles.

Then there are all those westerns where humble homesteaders cease being humble. Including “Jesse James”. A movie which inspired folksinger Woody Guthrie to write the following in a column published in People’s World in 1939: “The railroad racketeers hired hoodlums and thugs to beat and cheat the farmers out of their farms– and make ’em sell for $1 an acre. Frank & Jesse (James) robbed the train to get even. They robbed it so often that the engineer was disappointed on days they couldn’t get there.” Guthrie went on to pen several new stanzas for the folk song “The Ballad of Jesse James” stressing the land grab rebellion aspect.

Professor Gideon Kanner also seems to place some faith in the will of the people. He recently endorsed California’s Proposition 90, aka the “Protect Our Homes” initiative. Roughly one million Californians have signed petitions to put Proposition 90, an eminent domain and property rights constitutional reform measure, on the November ballot. They did so after the California Legislature blocked three separate, post-Kelo attempts to address eminent domain abuse via amendment to the state constitution. Among the groups who lobbied the legislature to reject the amendments were the League of California Cities, the California Redevelopment Association, and the California State Association of Counties. These same powerful eminent domain stakeholders are now working to defeat Proposition 90.

Proposition 90 deals with more than eminent domain. It also proposes that just compensation be given to property owners who lose the full use of their land via regulatory measures and suffer “diminution of fair market value”. This aspect has raised the hackles of some environmentalists and smart growth advocates. Whatever one thinks of Proposition 90, it’s instructive to note that if the California Legislature had acted to reform the state’s eminent domain laws, Proposition 90 might never have been born.

History abounds with examples of blocked reforms flowing into broader rivers.

Meanwhile, back in New York State, where ballot initiatives are forbidden, a major eminent domain show-down is taking place in Syracuse. One which proves homesteaders aren’t the only folks who get rolled over. The Pyramid Companies, a private corporation that builds mega shopping malls, wants to use government’s power of eminent domain to overturn the lease rights of 12 stores in an already existing smaller shopping center. Pyramid plans to eradicate the existing stores in order to build Destiny USA, the mother of all malls. The quasi-public Onondaga County Industrial Development Agency has ceded the right of eminent domain to Pyramid, and the New York State Supreme Court Appellate Division has nixed an appeal by the 12 resisting businesses. Who were good commercial citizens for years and helped establish the shopping destination Pyramid covets. Their unjust compensation, a cheap ticket out of town.

Whoo Whoo! Railroad coming through!

Carola Von Hoffmannstahl-Solomonoff
Mondo QT

“Yes, Frank and Jesse James was men that was game/To stop that high-rolling train…”

“The Ballad of Jesse James,” Irwin Silber, Songs of the Great American West, New York, NY, 1967

Sources include but are not limited to:

Press Release: “Eminent Domain Scholar Professor Gideon Kanner Endorses Proposition 90, the Protect Our Homes Initiative,” Protect Our Homes Coalition, 10/16/06

“Ruling might clear way for mall expansion,” Rick Moriarty, Syracuse Post-Standard, 09/30/06

“Broken Bench: In Tiny Courts of N.Y., Abuses of Law and Power,” William Glaberson, New York Times, 09/25/06

About The Salina 29,

Property Rights Foundation of America, Inc.,

Protect Our Homes Coalition,

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