tvc184

I think it will be an interesting case and could potentially come up for appeal on a different constitutional point. The Supreme Court has ruled in the past that the government doesn’t have to take possession of property in order to take it under the meaning of the Fifth Amendment. If they take away the enjoyment or use of the property, it is no different than physically seizing it to build a highway for example. In a lawsuit as opposed to a criminal trial, a person/plaintiff doesn’t have to prove something beyond a reasonable doubt but rather by a preponderance of evidence or “more likely” to have happened. Maybe it could be described as more likely yes than no or 51%-49%. ”IF” it can be shown at a trial by a preponderance of evidence that Texas more likely yes than no caused the flooding with its engineering of the project, the people suing might have a case. But…. Does that alone win the case under the Fifth Amendment taking clause? I am not so sure. In US v Causby the Supreme Court ruled that the US government took a man’s property by flying airplanes over it. It was a public airport lawfully leased by the US in WWII and used to fly heavy bombers from it. Causby had an egg farm and the extremely loud noise of some airplanes under full power and sometimes at night with a landing lights being so close, it bothered and scared the family and damaged his egg farm production. Some chickens died and some quit laying eggs due to the extreme disturbances and lights at night. The Supreme Court ruled in Causby’s favor saying that the US had taken away the enjoyment and use of his land even though they didn’t physically seize it. The use of the land was hampered and that was enough for the taking clause under the Fifth Amendment. So in the IH-10 case, did Texas take away the use or enjoyment of the property? A point of Causby was that the military bombers at a public airport was certainly for “public use”. The planes were public/taxpayers’ and the airport and lease were taxpayers’ property so the “public” definitely used it My question in this lawsuit against Texas, even in they can prove the damage, was the damage (like in Causby) for “public use”? If not would it then not be a Fifth Amendment case but rather a state law case? If Texas law denies such a lawsuit under state sovereignty and the families can’t prove a Fifth Amendment case of “public use”, could they prove the damages but still lose the case under state law? I haven’t read that anywhere and just thinking out loud. I could be way off base. But I think it could be interesting…..

If the state can show that, they will probably win. As far as the other people, they might have a case also. The Supreme Court doesn’t know any of the facts other than the State of Texas says that he doesn’t get his day in court. Their unanimous opinion was, yes the Constitution says that he gets his day in court. I have no opinion one way or the other except on the Fifth Amendment and precedent. Within the last few days they ruled the same thing on a California city where the local government said that the Constitution basically doesn’t apply to them. Again a unanimous Supreme Court said, oh yes it does.

But we aren’t discussing criminal charges which have nothing to do with a constitutional right. The government doesn’t have to receive something in order to take it under the Fifth Amendment. I have already said that the burden is on the land owner to prove that the highway caused the damage. If he can do so however, he will probably have a good case under the Constitution.

Read them the riot act! Then arrest where necessary…..

Actually I wasn’t responding to your comment. It was funny. I was using your comment to take issue with baddog’s comparison. 😎

That is yet to be determined in trial. ”Taking” in the Fifth Amendment doesn’t mean ownership, title changing hands, etc. A government can “take” your property without “taking” your properties. That has been true. This issue is, did Texas take the property under the Fifth Amendment and subsequent Supreme Court rulings and not the dictionary definition of “taking”. As always in the law, definitions matter.

Yeah, I got that but talk about a stretch. It should seem obvious that Trump’s prosecution is purely political. If someone is going to do a whataboutism, at least make it similar. This is so ludicrous that it’s like comparing a ham sandwich to a wallet.

Michael Jackson?

I would like to give a rebuttal to this!! But I can’t think of one….

I’m going to go out on a limb and say…… Blame might come down to, would it have happened had the state not acted as it did. Intent probably doesn’t matter. Having very little knowledge of the case except reading some court statements and legal websites, it seems that the state put up the concrete barriers with the intent for a to act like a dam and to keep the water on the south side of the highway. In other words, it worked as designed and flooded that land. In doing so however it protected the north side as an evacuation route. Of course, it might go to an arbitrator or a referee or I guess it could legally go to a trial but I’m not sure. The question that I come up with is, would it have flooded anyway? For example let’s say the guy got 4 feet of water on his land but meteorologists and other experts in flood plains might agree that he still would have gotten two feet of water without the barrier. So did the state seize his land? Can the plaintiff show that had the barrier not been there, his land would not have flooded? If so he probably gets some kind of compensation. If not…….

Obviously anything that is cut has to be made up somewhere. Raise taxes and fees or cut spending or a combination. The biggest question to get the discussion started, what percentage of property taxes come from a homestead of people 65 or older. Before that is know there is no point in looking into it. Is it 1% of property taxes collected or 8%?

From what I read, the state intended for there to be no drainage. It was to act as a dam or levee just like the hurricane levee around Port Arthur. It worked to perfection. In doing so, the water had to pile up somewhere. Like in Causby that I mentioned above, the Supreme Court ruled in that case that the federal government took his land by merely flying planes over it but low enough that the engine noise was disrupting.

Looking back at the exact wording, it seems like you are correct and it was the concrete barriers that were the ultimate problem. I mentioned it in my last comment, even if it was just the barriers, did Texas take his property? I think a case like US v. Causby might go a long way to proving his case. Causby had an egg farm and during World War II, the US government started flying four engine heavy bombers for the war effort, low over his farm at full power. The extremely loud noise killed a bunch of his chickens and caused many of the rest of them to quit laying eggs. Even though he legally still on the property, he sued, saying that the federal government had effectively “taken” the use of his property from him. The US Supreme Court sided with him, saying that for the purposes of the Fifth Amendment, the federal government had indeed taken away the use of his property. It wasn’t intentional but that didn’t matter. It seems like this case would fall somewhere along those lines.

That might have added to it but it said that they intentionally raised the roadway to help it act as a dam. Even if it was the dividers and no intent, did the state “take” his property without compensation? I think that it is interesting that a local landowner fought his case all the way to the US Supreme Court and won in a unanimous decision. So while he has not won his case yet, he won the right to have his day in court and possibly heard by a jury.

A Winnie land owner (and others) sued the State of Texas after they built IH-10 a few feet higher in order to help contain storm flooding. Sure enough a hurricane hit and flooded the land. The storm improvements worked!! Unfortunately the state sacrificed several people’s properties in using the interstate highway as a dam. Richard DeVillier tried to sue Texas under our laws and Constitution and the US Constitution under the Fifth Amendment “taking clause” (eminent domain). After a favorable ruling in the federal district court on the right to sue Texas directly, the Fifth Circuit Court in New Orleans overturned that ruling and said that the DeVlier had no authority to sue Texas directly. On Tuesday a unanimous US Supreme Court ruled that DeVillier and others had the right to sue Texas directly under Texas law and under the Fifth Amendment of the US Constitution. The case is now sent back down to the lower court. DeVillier and others have not won their lawsuits as the case has not been decided on its merits at a trial. He still has to go to prove his case. What they did win was a unanimous Supreme Court agreeing that he has the right to bring Texas to trial for taking his property with just compensation.