10/14/2004

A king's divine right
San Antonio (TX) Current, 10/14/04

A brief history of eminent domain

By Michael Cary

Domingo Castelo had served five years in the Presidio of San Luis de Las Amarillas by June 21, 1762. He sent a letter to the governor and captain general of the Province of Texas and the New Philippines, continuing to plead for a "single lot on which to earn my living," in the City of San Fernando.

Governor Angel De Martos y Navarrete granted a lot 80 varas square in the vicinity of San Pedro Creek, near his mother in law's property. "He must plant trees and vegetables and occupy the land within the fixed period, with the understanding that if he does not comply," the governor wrote, "the land will be declared unoccupied and uncultivated and may be granted to any other deserving person who may present a petition for it."

This was colonial Spain's version of eminent domain. The school of thought was that God gave the right of eminent domain to the king, and the king gave it to the viceroy, who gave it to the Spanish governor, who parceled it out to settlers. Yet, the king always had the right to reclaim his land for the public good.

Castelo was dead by 1770, and the property was reallocated to a succession of settlers. But Castelo's wife, María Ejeciaca Rodriguez petitioned to reclaim the land, and in 1778, Alcalde Phelix Menchaca restored her title after determining that she had made improvements with a fence and a water conduit for irrigation on the property.

María won her case in a time when rebellious British colonists had yet to pen the U.S. Constitution, and include the last line in the Fifth Amendment which reads: "nor shall private property be taken for public use, without just compensation."

Note two key words, "public use" and "just compensation."

"Eminent domain is the exclusive right of the state, county and the city to exercise discretion in taking private property," says Suzette Berry, a senior analyst in the Bexar County Clerk's office, which oversees the collection and storage of public records. "But it has to be for a HemisFair or to build expressways, with a purpose to serve all of the citizens."

The first eminent domain case on record in the courthouse (from the Republic of Texas era) was dated June 11, 1885, and pitted the San Antonio & Aransas Pass Railway Co. against property owner George Witte. The railroad had its heart set on a 600-foot wide swath of land between the San Antonio River and Probandt Street for a railroad right of way. The railroad won the first of a series of cases, and Witte was paid $125 for his property.

"Eminent domain removes your right to property, and the rights to water and minerals under that property - you can kiss that oil well goodbye, too," says Berry.

Jump ahead to November 1964, when the Texas Attorney General conducted a seminar for attorneys who had worked, or were about to work, on eminent domain cases. "While the concept of eminent domain stretches back in time to almost the beginning of law ... the development of this area of law, as we know it today, has taken place almost entirely within the past 15 years," explained Assistant Attorney General Hawthorne Phillips.

The Texas Highway Department had only three attorneys working condemnation cases in 1958, but by 1964, there were 30 attorneys involved with condemnations for interstate highway rights of way.

San Antonio residents were getting a taste of it from the north, south, and downtown. Families were displaced in the 1960s to make way for HemisFair and the convention center, as urban renewal programs opted to demolish neighborhoods instead of rebuilding them.

And the highways were indeed coming. City Council in August 1963 approved a "schematic" for the North Expressway, known today as Highway 281 and Interstate 37. The Sisters of Charity of the Incarnate Word didn't have to consult an oracle to see what would happen to them. The highway plan published in local newspapers showed the project's first route would cut through the Incarnate Word High School Campus.

The sisters hired attorney Pat Maloney and filed suit. The state attorney general's office was prepared to use taxpayer money to condemn the property. Other lawsuits followed, and the newspapers reported that City Hall had hinted at following a strategy to get a court to "stop legal bushwhacking of the freeway program." Maloney promised "a decade of court action."

But Incarnate Word was not only concerned about the taking of property. There was the integrity of Olmos Dam, the San Antonio Zoo, the Japanese/Chinese Sunken Gardens and the theater. The Conservation Society, led by Wanda Ford, sued to protect Brackenridge Park. Ford faced the prospect of losing her home to the project.

It was the first time the nation would build a highway through a school campus. Another irksome fact was that an alternate route would have followed Devine Road through the "walled city" of Olmos Park, but political pressure convinced the state to avoid building a highway through a municipality that did not want a highway. "A nun and a college administrator have to stand up here today to defend themselves against bricks, mortar and asphalt taking precedence over an educational institution which has given outstanding service to the city for some 100 years," said Sister Thomas Greenberg, president of Incarnate Word.

The nuns settled with the City for $972,000, and a walkway over the highway that twists and turns wildly on its route from Corpus Christi to Wichita Falls. Legal strategy and political clout delayed its opening until 1978. Ultimately, the City has benefited from the highway project, says former mayor Howard Peak IV, whose father had joined a lawsuit as an individual in the 1960s against building the expressway. "The net result was a roadway realigned to minimize the taking of the park, and so while it was long and involved, and expensive, some good did come out of it," says Peak. "In the end, the City would be in a bit of a mess if we didn't have the freeway."

Although eminent domain is used throughout the U.S., in Texas the stakes are higher, says County Clerk Gerry Rickhoff. "Texas has a higher level of concern because roots to the land are deeper. Land is 98 percent privately owned. You're entering the land of the unhappy people."

Just ask Elizabeth Small, whose grandfather was Edward Patrick Walsh. The Walsh Ranch along the Medina River had been in the family since the Spanish granted the land to them in 1794. Then in the late 1980s, the City decided it wanted a large piece of Walsh property to build a giant mosquito bog, the Applewhite Reservoir. Edward Walsh encountered then-mayor Henry Cisneros in an elevator in a local hospital and was told, "We're gonna get your ranch."

Small contends that the Walsh Ranch was chosen for political reasons. She says the City left the nearby Strauss Ranch alone, since that family carries more political clout. And today, the Walsh Ranch is under construction as Toyota Acres.

"In 1991, the condemnation was very rough on the family," says Small, who grew up on the ranch. "We were told the only thing the land was good for was for tire recycling or trailer parks. Then suddenly it was too valuable to sell back to us, and they were using taxes to condemn our property." "They weren't too sensitive to the family," says Rickhoff, referring to the City's tactic in the Applewhite episode.

The Small family has located another ranch farther south, near Pleasanton, and Elizabeth has graduated from UTSA with a degree in marketing and is moving on with her life, although it still hurts to think about losing 5,000 acres and a family homestead. "It's hard to drive by there, very hard. It was a unique place."

There were 67 condemnation cases before two probate courts in Bexar County in 2002. There were 35 in 2003, and 39 so far in 2004. Various public entities, including the City, the State, school districts, and even Canyon Regional Water Authority, have filed the cases, and the public rarely gets a glimpse of them. On the City side, condemnation proceedings are listed under the "Consent" portion of the City Council Agenda, and rarely get a mention in public.

But the results can be seen everywhere, in drainage or utility easements, or property taken for a road project. There is one substantial example on the City's North Side, along Babcock Road, between De Zavala and Hausman roads. The City condemned property owned by the Bertetti Family Trust, paid more than $600,000 for the property, and built a new bridge over Leon Creek.

Owning a piece of property and a home has for decades been the American Dream, but if the Kingdom of Government wants its property back, there's nothing to do but jump out of the way of the legal bulldozer known as eminent domain.


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