7 Flooding and Erosion

• Library: Eminent Domain: A Handbook on Condemnation Law (ABA) (2011 Ed.)

Robert H. Thomas

Generally, any physical invasion by or caused by the government, no matter how small, is compensable in eminent domain, inverse condemnation, or tort.¹ This chapter deals with eminent domain and takings issues surrounding flooding and erosion. The rules applicable to eminent domain and just compensation generally apply in situations where all or part of a parcel of land is invaded by water.² Permanent flooding is compensable, as are certain temporary intrusions. Intermittent but recurring flooding is also compensable in inverse condemnation when it becomes a substantial interference with the use and enjoyment of property.³ When no permanent flooding has occurred, frequent and inevitably recurring inundation may also lead to liability; this is generally a question of fact.⁴ If the flooding occurs as the result of a natural disaster⁵ or force majeure,⁶ there is no taking, and there is no state action in those circumstances. In some jurisdictions, if the flooding can be prevented by the property owner, there is no taking.

The same principles apply to erosion;⁸ namely, when the government takes land by flooding, it not only must pay for the land flooded, but the land washed away.⁹ Erosion is a "physical" taking of "fast land."¹⁰ "Fast land" is land that is relatively fixed, and not subject to any navigational easements. Thus, the permanent washing away of permanent soil and a house caused by increased river velocity resulting from a government construction project is a compensable taking. In such a situation, there is no logical distinction between property permanently flooded and property washed away.¹¹ As in flood cases, the erosion must be caused in some degree by government action, not natural causes.

The rules of calculating just compensation that apply to other condemnation actions also generally apply to takings by flooding and erosion. Thus, the compensation that must be paid is calculated by determining the fair market value of the property before the flooding or erosion and subtracting the value of the land after the event, plus any damage to the remainder.¹²

THEORIES OF RECOVERY

Flood and erosion often raise the threshold question of whether the government activity causing damage to private property is an event that triggers liability. The government has the authority to regulate private property for the health, safety, and welfare of the public. Thus, the federal government's building of levees or enclosing the breaks in levees, causing a rise in the water level and thereby rendering a riparian owner's levees ineffective, has been held to not be a taking of property, but rather an exercise of power to protect the public.¹³

The most compelling police power reason justifying flooding of property without compensation is necessity or emergency. In Hughes v. United States,¹⁴ the Court held that dynamiting a levee to prevent it from giving way, even if wrongful, would not result in liability for a taking for any resultant flooding. However, the mere declaration of an emergency is not sufficient to relieve the government from takings liability; instead, the situation must be one of imminent necessity.¹⁵

The government will often assert that the flooding or erosion was caused by, or incident to, an exercise of the police power. In Bass v. State,¹⁶ the court held that the building of levees to prevent flooding is an exercise of police power, and the landowner on whose land the levee is built cannot hold the state liable for compensation. This view has yielded for the most part to the more modern notion that even when the government floods or erodes property by its police power or under the federal commerce clause, just compensation is owed for the land taken.¹⁷ Thus, the fact that a flood control district was exercising police power in a flood control project did not render it immune from liability when it negligently removed protective structures and substituted inadequate levees.¹⁸

If the government has contributed to the emergency, it may not use the emergency police power exception to escape liability. Thus, the government could not disclaim eminent domain liability under the emergency doctrine for the breaching of a levee system, when it admitted that the emergency was caused by the inadequacy of other government-maintained levees. If the government had implemented its flood plain plan and taken the property, it would have had to pay compensation.¹⁹

The police power exception should be reserved for situations where the government's invasion or destruction of property is in order to protect other property or the public and is truly necessary, such as when the government burned a mill and destroyed a dam in order to prevent a flood from damaging a public highway and other property.²⁰ Despite the modern trend of limiting the police power exception to true emergencies, lawyers representing landowners should anticipate the argument that flooding that is the consequence of otherwise valid government activity is not a taking and therefore not compensable.

INVERSE CONDEMNATION OR TORT

Flooding and erosion may also raise questions regarding whether inverse condemnation or tort is the proper remedy. Elk City v. Rice²¹illustrates the distinctions. There, the landowner's property eroded after the government constructed a dike in a river in order to repair a government pipeline. The dike and pipeline did not touch plaintiff's property, so the remedy for the erosion was in tort, not inverse condemnation.

Other jurisdictions hold that for flooding to create inverse condemnation liability, the flooding must occur as a result of a government public improvement action and be related to its purpose.²² In those situations where the government improvement does not cause the harm, tort is the proper form of relief, not inverse condemnation.

Some courts blur the distinction between the two, holding that inverse condemnation is simply a remedy and may include damages caused by diversion of water from its natural course and claims of trespass.²³ The distinction between inverse condemnation and tort may be critical, especially in the application of statutes of limitations and the extent of available damages.²⁴ The theory may also become critical in determining whether sovereign or other immunity has been waived.²⁵

WATER INTRUSION

In some jurisdictions (e.g., California), intrusion by water is treated differently based on its source. Keys v. Romley²⁶ identified three sources of water intrusion: flood water, surface water, and stream water. Flood water is the "extraordinary overflow of rivers and streams."²⁷ The government is liable when improvements it creates cause flood damage on private property.²⁸ As long as there is a causal connection between government activity and flooding, the government may be liable in inverse condemnation. In some jurisdictions, only intentional flooding is actionable in inverse condemnation, and the damage must have been actually foreseen by the government.²⁹ Other jurisdictions allow the landowner to prove that the government acted unreasonably.³⁰

Surface water is water "diffused over the surface of land, or contained in depressions" resulting from rain, snow, or subsurface spring water.³¹ The government may be liable in inverse condemnation when it diverts surface water in the course of operating its flood control system, or alters the natural drainage patterns.³² The test is one of reasonableness, which balances the government's actions against the landowner's.³³

Stream water...