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Editor's Notes

• #3: aka ‘Takings’ and ‘Condemnation’
• #4: common law power – rarely codified until modern times despotic power – VanHorne’s Lessee Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 311 (C.C.D. Pa. 1795) Hawaii’s unique history dovetails with the English background of the United States –
• #5: always keep this in mind – property owners have done NOTHING WRONG the only area in which the awesome powers of government may be aligned against you as much are when you are accused of a crime property owners have every right to object at every step of the way – their only crime is that they own property that the government wants government has an obligation to treat these people well this is not typical litigation
• #6: note that there is NO AFFIRMATIVE GRANT of eminent domain power in the constitution consistent with other provisions, it LIMITS THE ABILITY OF GOVERNMENT
• #7: still an unsettled question as to what “DAMAGED” means and how it may differ from how the Courts have interpreted “TAKEN”
• #8: the Right TO property, not the right OF property
• #9: Hawaii Supreme court has held that chapter 101 superceded the common law and must be strictly construed (against the government, one would presume since it impacts the fundamental right of property, and to hold otherwise would violate the Fifth Amendment). Case - Herring v Gulick, 5 Haw. 57 (1883)
• #10: Five questions naturally follow from the language of the Constitutions, and inform the issue of whether an exercise of eminent domain authority is valid:
• #11: always keep in mind the overriding purpose of the Takings Clauses: designed as a check on legislative overreaching and to insure that the cost of public benefits are not concentrated in a few politically powerless citizens but spread across the entire population
• #13: PUBLIC UTILITY = common carriers, freight carriers – by rail, bus, other means telephone company water, gas, oil suppliers ----------------------------------- Water companies – rights of way for water systems – limited to one county – go to PUC first and get OK
• #15: income stream – Sandy Beach – court held that ……….
• #16: as property owner’s counsel, BE CREATIVE – constitution requires full value, so don’t ignore novel theories just because it hasn’t been done before listen to your clients – business people know best what is valuable in the marketplace Fundamental sticks – Kaiser Aetna, 1979
• #21: HOW DID WE GET FROM THIS
• #22: TO THIS?