土地征用权:从圣经时代到现在- 2015年9月
I:土地征用简史:
法学家19世纪早期的法国法学家, Merlin de Douai, claimed that the earliest known reference to the use of eminent domain is in the Old Testament in the Book of Kings, 描述了亚哈王获得拿伯的葡萄园:"亚哈对拿伯说, saying, 把你的葡萄园给我, 这样我就可以把它当作菜园了, because it is near unto my house: and I will give thee for it a better vineyard than it; or, 如果你觉得好, 我将给你等值的钱.”[1] However, further examination reveals that only the initial line quoted resembles eminent domain, and what happens after that in the Book of Kings definitely does not resemble what we know of as eminent domain.
Given the phrase “all roads lead to Rome” one would expect the Romans to have been great believers in eminent domain, but the aqueducts and famous straight military roads were generally laid out through conquered territory which was not the property of Roman citizens but belonged to the government.[2]
在英国封建制度下, all land was held under a tenure which recognized the ultimate ownership of the sovereign.[3] The construction of a public improvement therefore did not involve the taking of property for compensation in its modern sense; highways were often simply laid out without compensation to anyone. 国王确实有皇室特权的执行和优先购买权.e. the king had the right to seize provisions for the use of the royal household, 未经所有人同意, 并按估价师的合理估价支付.[4] However, the concept of “eminent domain” with regard to realty as we think of it in the U.S. was only in its crude beginnings in English law at the time of the founding of the first American colonies.[5] Therefore, 不像其他学科, 英国的普通法案例在这个问题上不一定有帮助. The English also use the much easier to understand term “compulsory purchase” rather than “eminent domain.”
在殖民时期, the southern American colonies largely retained the practice of laying out highways without compensation to the owner of the land.[6] 在维吉尼亚州，法律规定在公路案件中实行陪审团调查.[7] 这个过程的有趣之处在于，它被称为写AD，该死的，这句话的意思是，尽管这件事已交由陪审团审理, 它可能完全是单方面的, that is it could be conducted without any notice to or participation by the landowner, 甚至在听证会前确认土地所有者.[8]
随着美国从英国独立出来, 每个现存的殖民地都成为一个主权国家, and assumed sovereign control over the persons and property within its jurisdiction.[9] 新的州加入联邦时拥有旧州的所有主权.[10] 现在是每个州, 至少理论上是这样, has sovereign control over the persons and property within its jurisdiction subject to the limits of its own constitution, deducting only the powers granted to the United States and the powers each state is forbidden to exercise by the constitution of the United States.[11]
二:弗吉尼亚州近期有关征用权的案例选集
a. 征用征用财产, 是什么导致了包裹被陆地包围, did not give rise to any implied grant of access rights over the lands of others.Clifton v. Wilkinson, 286 Va. 205, 211, 748 S.E.2d 372,375, 2013 Va. 工程机械学报，2003,24 (4):481 - 481 (Va .. 2013).
b. Plaintiff argued that it had obtained an easement by express reservation across property acquired in 1938 by the Commonwealth of Virginia under its power of eminent domain, which the Commonwealth conveyed to the United States government for construction of the Blue Ridge Parkway. The court held that the district court did not err in concluding that the Commonwealth acquired all the property described in the condemnation petition, 毫无保留的所谓地役权, because the description of the property in the petition and in the state highway commissioners' report did not reference such an easement. The court also held that the district court's decision did not constitute a collateral attack on the state circuit court's order confirming condemnation of the property described in the Commonwealth's petition and the property's value as set by the commissioners because the decision constituted only an examination of the scope of that order.Agape Motorcoach Retreat, LLC诉. Brintle, 523 Fed. Appx. 948, 949 (4th Cir. Va. 2013).
c. A circuit court judge denied a portion of a defendant’s motion to dismiss a condemnation petition based on alleged failure to sufficiently identify the property in the caption, stating that “the caption has no operative effect to limit or preclude the condemnation,” although the court did note that the property was specifically described in the body of the petition. City of Richmond v. Haas, 2013 Va. Cir. 58 (Richmond Cir. Ct. June 18, 2013).
d. A railroad's plea in bar and motion for summary judgment were granted because the property owners' claim was preempted by 49 U.S.C.S. § 10501(b) where the railroad line at issue had been in active use since 1890, predating the development of the neighborhood in which the owners' properties were located, the harms alleged by the owners directly resulted from the railroad's operations, and subjecting the railroad to claims based on the alleged by-products (such as noise, vibration, and various discharges) of conventional and routine rail operations on the railroad's own property, whether brought as nuisance claims or the "property damage" provision in Virginia's inverse condemnation clause, 会给州际贸易带来过度负担吗, 严重阻碍了铁路的正常运行, 这相当于不允许国家对铁路运营进行监管. Schilling v. 南诺福克郡., 2015 Va. Cir. LEXIS 108, *1 (Va. Cir. Ct. 2015年6月15日 Norfolk So. Ry. Co.-申请宣告令, Docket No. FD-35701, 2013 STB LEXIS 338(11月. 4, 2013)).
D. Rossen “Ross” S. 格林是彭德的一部分 & 科沃德的土地征用业务小组. 他是杰出领域的av级(“卓越”), Litigation and Real Estate by the Martindale-Hubbell Peer Review Ratings system. 他还被评为弗吉尼亚州的法律精英之一. 欲了解更多信息，请致电(757)502-7333或发送电子邮件至 rgreene@580sl.com.
[1] 1-1尼科尔斯关于征用权§1.21; 1 Kings 21 (KJV).
[2] Id.
[3] 1-1尼科尔斯关于征用权§1.21.
[4] Id.
[5] 1-1尼科尔斯关于征用权§1.22.
[6] Id.
[7] 1-1尼科尔斯关于征用权§1.22 (citing Stokes v. Upper Appomatox Co.， 3 (Va) 318.).
[8] See id.; 1-1尼科尔斯关于征用权§1.21
[9] 1-1尼科尔斯关于征用权§1.23
[10] Id.
[11] See id.