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A Property Owner Strikes Back

Private property owners have been despondent ever since the Supreme Court gave government carte blanche to take their land for non-public use. Kelo v. City of New London, 545 U.S. 469 (2005). For over a year it has seemed that there is nothing an owner can do in the face of a government disrespectful of private property rights.

Necessity is the mother of invention, even in the stodgy field of law. A creative legal argument for private property was recently embraced by the ordinarily pro-government Court of Appeals for the Fourth Circuit. Presley v. City of Charlottesville, 2006 U.S. App. LEXIS 24048 (4th Cir. Sept. 22, 2006).

The facts were as simple as they were compelling. Shirley Presley, a widow and long-time resident of Charlottesville, Virginia, owns a parcel of property along the Rivanna River. Without her consent, the town published a map displaying a public hiking trail right smack across her land along the river. Less than an acre was subjected to this intrusion, but oh what a nuisance it became.

The hikers left behind trash and damaged vegetation, and sometimes strangers even set up overnight camp sites on Mrs. Presley’s property! It became a constant cycle of Mrs. Presley calling the police, waiting for the police to come out and tell the strangers to leave, only to be followed by new strangers arriving through reliance on the town map posted on its website.

Mrs. Presley tried using “no trespassing” signs, but they were all defaced and destroyed. Left with no other options, Mrs. Presley finally protected her property with razor wire. How did the town respond? By modifying a local ordinance to prohibit what Mrs. Presley had done, and prosecuting her criminally. The charges were ultimately dismissed.

The town never corrected its map or its website, encouraged by the Supreme Court decision in Kelo allowing local government to take property for private use. The town’s attorney may have thought that Mrs. Presley could merely recover the condemnation value of an easement across her property, which is minuscule.

But Mrs. Presley’s attorney found a way around the Kelo injustice. Mrs. Presley sued for a violation of her Fourth Amendment right against an unreasonable seizure in addition to her Fifth Amendment right to just compensation for the taking of her property.

The town had essentially seized her property for hikers and Mrs. Presley requested damages for that violation of the Fourth Amendment, above and beyond any compensation owed her under the Fifth Amendment. The market value of one’s private diary may only be pennies, for example, but the damages incurred if a government official unreasonably seizes it could be astronomical.

Howling in dissent, one of the three appellate judges declared that “permitting Presley to invoke the Fourth Amendment here would allow her to make an end-run around” Fifth Amendment precedents, such as Kelo. “[A] ‘seizure’ as defined in Fourth Amendment cases occurs in every case where there is a taking by physical occupation,” he lamented.

Indeed it does, which is precisely what private property owners deserve: recourse against an insatiable government that intrudes on and takes the property of its citizens.

For once, have bad facts made good law?