Developments in Eminent Domain: A Candle in the Dark Corner of the Law
![handle is hein.journals/udetmr52 and id is 875 raw text is: Developments in Eminent Domain: A
Candle in the Dark Corner of the Law
GIDEON KANNER*
I. INTRODUCTION
The assessment of eminent domain as the dark corner of the
law1 has been with us for some time,2 and unfortunately the
pejorative nature of this assessment is not unjustified.3 However,
the tidal wave of eminent domain litigation that swept the country
in the 1960's has served the constructive purpose of spotlighting the
many anomalies and injustices embedded in the pertinent rules,
some of which have come to us from the nineteenth century without
much reexamination. The decisionmakers, legislative as well as ju-
dicial,4 have begun to respond. Eminent domain is beginning to be
recognized as an area of law ripe (if not overripe) for reform.' This
*Acting Associate Professor of Law, Loyola University, Los Angeles; B.M.E. 1954, The
Cooper Union; J.D. 1961, University of Southern California (Los Angeles); Editor, Just
Compensation, a monthly report on condemnation cases.
1. D. Guy, STATE HIGHWAY CONDENATION PROCEDURES 1 (1971).
2. 2 L. ORGEL, VALUATION UNDER EmNENT DoMAIN § 249, at 266 (1953) [hereinafter cited
as ORGEL].
3. For a collection of critical commentaries, see Kanner, When Is Property not Prop-
erty Itself: A Critical Examination of the Bases of Denial of Compensation for Loss of
Goodwill in Eminent Domain, 6 CAL. WEST. L. REV. 57, 58 (1969). The most recent
assessment opines that eminent domain [is] a maniacal backwash of American law whose
rites are performed by appropriately type-cast acolytes. Lascher at Large, 50 CALAF. ST. B.J.
36, 38 (1975).
4. The ascertainment of just compensation, being a task of constitutional dimension,
has traditionally been a judicial one. Monongahela Nav. Co. v. United States, 148 U.S. 312,
327 (1892); United States v. New River Collieries, 262 U.S. 341, 343 (1923). Thus, a legislative
attempt at invading this judicial prerogative may be invalidated, Calhoun v. State Highway
Dep't, 223 Ga. 65, 153 S.E.2d 418 (1967), even where the legislative intent is benign. See
Luber v. Milwaukee County, 47 Wis. 2d 271, 177 N.W.2d 380 (1970), invalidating a compensa-
tory statute on the grounds that the compensation allowed by it was required by the Constitu-
tion, and the statute by not going as far as the constitutional rule required, constituted an
invalid attempt at abridgment of the Constitution. However, there is no constitutional prohi-
bition against legislative liberalization of the treatment of condemnees. Joslin Mfg. Co. v.
Providence, 262 U.S. 688 (1922).
5. See State v. Wherity, 275 Cal. App. 2d 241, 252, 79 Cal. Rptr. 591, 598 (1969)
(Friedman, J., dissenting). A number of states, including California, Iowa, New York and
Virginia, have created commissions charged with revision of pertinent law. Additionally, the
American Bar Association has proposed a Model Eminent Domain Code, 2 REAL PROP. PRO-
BATE & TRUST J. 365 (1967), and the National Conference of Commissioners on Uniform State
Laws approved a Uniform Eminent Domain Code in 1974.](ViewImageLocal?handle=hein.journals/udetmr52&div=59&collection=journals&method=preview&ext=.png&size=3)
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Developments in Eminent Domain: A Candle in the Dark Corner of the Law
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