- SPECIAL REPORTS
- THE MAGAZINE
Traversing the LawOctober 2005
Mr. Lucas has correctly stated in his article "Trampling private property rights?" that there is no specifically written right to own private property to be found in the Constitution. However, private property ownership existed before the Constitution was adopted, and the people were very protective of that right. Before the people would ratify the Constitution they wanted a guarantee from their representatives that they would amend the Constitution to clarify the individual and collective rights that they retained. This listing of rights became the first ten amendments, known as the "Bill of Rights."
The Fifth Amendment states in part: "nor shall private property be taken for public use, without just compensation." We must keep in mind that the Fifth Amendment is included within the specific list of basic rights retained by the people. As can be seen, the Fifth Amendment presumes an individual's right to own private property, otherwise there would be no need for the clause. The Fifth Amendment is in actuality a set of restrictions placed upon the federal government to protect the rights of individuals. There is no constitutionally granted authority to be found in the Constitution permitting the federal government to take your private property and transfer it to anyone else for purely tax based or urban renewal reasons. This is not "public use"; it is "public benefit." While "public use" is a public benefit, "public benefit" is not necessarily public use. ...
The Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." While "We the People" obviously have the authority to cede our private property rights to our state government (as the people of Connecticut did) this in no way involves the federal government.
The Fourteenth Amendment states in relevant part: "nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." If the people of the State of Connecticut have allowed the more general definition of "public use" to mean "public benefit" by ratifying of their own constitution or by enacting a law, then the federal Constitution has been followed and no citizens have been denied their due process rights.
The only reason the Supreme Court should be concerned is if a federal project is involved, if there are federal funds expended, and to determine if the due process rights of the plaintiffs were violated. The Fifth and Fourteenth Amendments would apply, but only to the extent necessary to determine if the federal funds were expended lawfully, and that Connecticut adhered to its own laws and constitution, and that those laws were not abhorrent to the federal Constitution. Isn't this what was intended by the founders in establishing our "republican" form of government?
It is clear to me, if not to the court, that the people who ratified the federal Consti-tution understood what "public use" meant. Where the Supreme Court erred in this case was to take the mighty leap that it did and force every state to now abide by a Connecticut statute. Please, reserve me a room at the "Lost Liberty" hotel!
Richard J. Swan, PS
Jeff Lucas, PLS, Esq. responds:
I appreciate your comments on the Constitution and the adoption of the Bill of Rights. I respectfully offer two comments: (1) The state as sovereign has the inherent right to take your property, just as the King of England did in his day. This is not a conferred right, but a right imbued in the sovereign. With regard to the property issues in the Fifth and Fourteenth Amendments, these are limits on the sovereign's power to take your property. The only rights being conferred are the right not to have your property taken without "due process," the taking has to be for a "public purpose," and you must receive "just compensation."
Pollard v. Hagan [44 U.S. 212, 216 (1845)] states: "No principle is more familiar than this, that whilst a state has granted a portion of its sovereign power to the United States, it remains in the enjoyment of all the sovereignty that it has not voluntarily parted with. This court, though inexpressibly valuable to the country, is yet a court of limited jurisdiction. In the Constitution, what power is given to the United States over the subject we are now discussing? In a territory [the federal government is] sovereign, but when a state is erected a change occurs. A new sovereign comes in."
(2) The Supreme Court should be concerned any time constitutional rights are at issue, not just when a "federal project is involved." The main point that I was trying to make is that state law governs property rights, by and large. Kelo reminds us of this and we shouldn't lose sight of this fact as we go about our daily business of maintaining the nation's property boundaries.
In "Traversing the Law," a portion of a citation on p. 47 was missing. The complete quote from Lammey v. Eckel, 970 S.W. 2d 307, (Ark.App. 1998) follows:
"In the case of a boundary by agreement, the landowners have made a parol agreement as to the location of the boundary. For a valid oral boundary-line agreement to exist, four factors must be present: (1) there must be an uncertainty or dispute about the boundary line; (2) the agreement must be between the adjoining landowners; (3) the line fixed by the agreement must be definite and certain; and (4) there must be possession following the agreement. The agreement is binding even if the parties entering into possession pursuant to it do not occupy the land for the full statutory period of seven years."
Fun and Games contained an error in the solution to problem 47(6-34) from Jan Van Sickle's book 1001 Solved Surveying Fundamentals Problems. The problem is reprinted below with the corrected solution:
Problem: Surveying Instruments and Procedures: Transits and Theodolites
Verniers are often used in reading both the horizontal and vertical circles of transit. A particular vernier scale is attached to a circle that is graduated to 20'. The vernier has 40 increments that, taken together, equal 39 on the circle. What is this type of vernier, and what is its least count?
(A) It is a folding vernier with a least count of 01'.
(B) It is a retrograde vernier with a least count of 30".
(C) It is a direct vernier with a least count of 01'.
(D) It is a direct vernier with a least count 30".
Solution: The answer is (D)
The vernier described is of the direct type, as are nearly all transit verniers. The increments on the direct vernier are slightly smaller than those on the circle; in this case, 40 spaces on the vernier correspond to 39 spaces on the circle. On the other hand, a retrograde vernier is characterized by increments on the vernier that are larger than those on the circle.
The least ocount of the vernier may be found by the expression
least count = s/n
s is the length of each graduation of the circle, and n is the number of vernier spaces. In this case, the least count is found by
20/40' = 0.5' = 30"
In other words, 20 minutes of arc divided by 40 increments is equal to 0.5 minutes of arc, which is equal to 30 seconds of arc.