Daily Development for
Friday, January 30, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

CONSTITUTIONAL LAW; TAKINGS; PHYSICAL TAKINGS: City's enforcement of property owner's obligation to maintain lateral support of public highways was not an unconstitutional taking because the provision of city charter imposing an obligation on property owners to maintain lateral support for public highways was a prevailing rule of state's property law when owners acquired their property and, therefore, encumbered their title.

Kim v. City of New York, 681 N.E.2d 312 (N.Y. 1997).

This 4-2 decision raises some interesting taking questions that may be swallowed up in procedural issues should the case proceed further, but which nonetheless are provocative.

Plaintiff property owners brought action to recover damages for alleged taking of their property for public use without just compensation when the defendant city placed side fill on 2400 square feet of plaintiff's property abutting a public roadway. In 1978, prior to plaintiff's purchase of the property, the city had changed the "legal grade" of this roadway, raising it by over five feet. But the city did not get around to changing the actual grade until 1990, and in doing so raised the level of the roadway to a point higher than the plaintiff's land, necessitating the sidefill.

Plaintiff sued in inverse condemnation, arguing that the City's action constituted a physical taking of his property - imposing a special burden for a general public benefit.

The Supreme Court of Queens County granted defendant's motion for summary judgment, which the plaintiffs appealed. The Appellate Division held that the obligation to maintain lateral support of public highways was the prevailing rule of the state's property law when the owners acquired their property, and therefore the city's enforcement of the obligation by depositing side fill along the highway did not constitute an unconstitutional taking of any property interest of the plaintiff for which they were entitled to compensation.

On appeal, held: Affirmed: In a 4-2 decision, with a strongly worded dissent, the Court of Appeals posited that a decision in favor of the plaintiffs would be inconsistent with the basic purpose of takings law - which is to protect the private landowner from unfair fiscal burdens that should be shared by the public as a whole. Prior to purchase, plaintiffs had the opportunity to inquire into the legal grade of the property and to attempt to obtain a reduced purchase price due to the possibility that the city would enforce the lateral support obligation.

The dissent argued that there was no common law rule applying to a case such as this one, where the adjacent roadway was elevated above the natural level of the land. Further, the dissent pointed out that there was no evidence that plaintiff's land was at a grade lower than its natural level. Consequently, ordinary rules of adjacent support would not apply. The majority does not seem to contend that there was any "normal" duty of support, but that the special duty to provide support to public highways is part of the common law and statutory law of the state and all property owners' titles are limited.

Comment 1: The fundamental question as to whether a state can, without payment, subject a landowner to a duty to provide adjacent support to an elevated highway strikes the editor as an important question. The majority and dissenting opinions debated the point here, but the case does not raise the issue very clearly, since the rule imposing the adjacent support duty was imposed upon this property, at the latest, when the legal grade was changed in 1978.

It would appear that the "taking" occurred, if at all, at that time.

But, as the court points out, such takings claim belonged to the plaintiff's predecessor. We can assume that the market took such duties into account when the 1978 owner sold the land to into the chain that now has led to plaintiffs.

Comment 2: If the plaintiffs' predecessor had a takings claim, could it have assigned the claim? The editor usually includes a general assignment of express and implied warranty claims and other intangible rights and claims in real estate sale agreements, but is not sure whether such assignment would cover takings claims.

Comment 3: Even if the right had been assigned, it is likely here that the statute of limitations would have run on any takings claim based upon the declaration of a duty of lateral support. That is the reason that the editor concludes that this is a weak case in which to raise the fundamental takings issue.

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