Regulatory Taking Standards:
A taking occurs when the government uses its power of eminent domain to acquire land owned by a private party. This action falls under the Takings Clause of the Fifth Amendment to the U.S. Constitution. If a taking occurs, the government must pay just compensation to the owner.
The only justification for government taking private property is for a public purpose. Economic development has also been considered to be a public purpose.
Courts that are not acquainted with the needs of the community where the taking is proposed are not in the best position to make a determination on the necessity of the taking. That reasoning has kept a universal standard for taking from being promulgated.
Each taking event is based on its own particular set of facts that need to be weighed for its merits. The states have enacted laws limiting the taking for economic development as a result of the Kelo case. There is an effort by the people to protect individual property rights in the face of economic development.
In the case Lillard v. Owens, 281 Ga. 619, 641 S.E.2d 511 (2007), the trial court, via jury trial ordered the February will admitted to record as the testator's last will and testament. The Supreme Court of Georgia affirmed.
The jury trial found that:
(1) the October will was invalid;
(2) the testator had not revoked the February will; and
(3) the February will was valid.
Witnesses testified that the testator was not lucid during the time period when the October will was executed. According to OCGA §53-4-11(a) , testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property. The court determined that the testator lacked testamentary capacity at the time he executed the second will.
Further, the court ruled that the revocation of the first will was not a voluntary act as a result of his mediated status, and held that first will valid.
Balance of Rights:
When balancing the interests of those who would claim ownership over property, it is important to put the original owner's interests first. The individual who finds the property may claim it against anyone except the original owner.
Found property is broken down to four parts:
1. Abandoned property - owner intends to surrender all rights to property. The first person who takes possession acquires title that is valid, including the prior owner.
2. Lost property - owner intends to part with the property and does not know where it is. The individual who finds the property may claim it against anyone except the original owner.
3. Mislaid property - an owner voluntarily puts property in a particular place for safekeeping, but then does not claim it. The individual who finds the property may claim it against anyone except the original owner.
4. Treasure trove - valuable items intentionally concealed in the distant past by an unknown owner for safekeeping in a secret location. The landowner is awarded title.
Hence, the interests of the parties involved are balanced.