Thursday, November 17, 2016

Carback on a 19th-Century Eminent Domain Case

Just in time for those of us who teach the public use requirement toward the end of a one-semester Property course, Joshua T Carback, a student at the University of Maryland, Francis King Carey School of Law, has posted Public Takings for Private Use: A Maryland Case Study in Nineteenth Century Railway Expansionism, which is to appear in the Charlotte School of Law Property Law Journal 3 (2016): 46-100:
The government’s ability to utilize its power of eminent domain for private use is a provocative one. This Article examines the legal controversy that inheres in such power through the lens of two coal companies competing for hegemony in the nineteenth century Western Maryland coal industry. New Central Coal Co. v. George's Creek Coal & Iron Co., 37 Md. 537 (Md. 1873) provides an interesting case study in nineteenth century public takings conducted to allow private entities to build railways. The case arose as a result of New Central Coal Company’s attempt to execute a public taking of the land of the Georges Creek Coal & Iron Company for its private use to build a railroad connecting its coal mine to a major rail line between 1871 and 1874. This Article analyzes the significance of the case within the social, economic, and political context of the town of Lonaconing in Allegany County, Western Maryland, where the parties were situated. This Article also traces the procedural history of the legal dispute between these two parties, including its appearance before the Allegany Circuit Court in 1872, and before the Maryland Court of Appeals in 1873 and 1874. Finally, this Article presents an analysis of the Maryland Court of Appeals 1873 opinion.
Update: And, speaking of teaching the public-use requirement, I've asked my students to view this video, produced by the Institute for Justice.

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