Inverse Condemnation

Inverse Condemnation

Most farmers are generally familiar with the concept of eminent domain: A government agency or utility cloaked with eminent domain authority condemns for a public project; in exchange for this condemnation, you are entitled to compensation for the value of the affected land. Unfortunately, not every public project works out exactly as planned. Occasionally, a government agency or utility project will cause damage to property that has not been the subject of eminent domain proceedings.

Under the 5th and 14th Amendments, property owners still have the right to recover for property that is damaged by a government’s actions, even if the property was not subject to eminent domain proceedings. Under the “Takings Clause,” a property owner is owed “just compensation” for any private property taken for public use. In instances where the property is taken outside the context of eminent domain, a property owner can sue for damages under the theory of “inverse condemnation.”

Inverse condemnation, as the name suggests, works in reverse order from typical condemnation proceedings. In these cases, the property owner sues for damages after a taking of property has occurred. In agriculture, inverse condemnation generally arises in two circumstances: (1) permanent property damage, such as flooding or loss of access, results as a consequence of a government project; or (2) a “regulatory taking,” where zoning or other regulatory actions burden the use of property to the extent it arises to the level of a taking. In this column, I’ll address the first circumstance.

Proving a taking is sufficient enough to receive damages under the theory of inverse condemnation is no easy task. The property owner must satisfy a two-pronged test. First, a landowner must prove a government intended to take actions that invaded the property or the property invasion was a “direct, natural or probable” result of an authorized government action and not an “incidental or consequential” resulting damage. In other words, the property invasion must be a foreseeable result of the government’s actions with a linear relationship between the government’s actions and the property damage. While flooding cases might be relatively simple to prove, inverse condemnation cases involving groundwater contamination can be challenging because they might not satisfy this “foreseeability” prong. 

Second, the landowner must demonstrate he or she suffered substantial property damage as a result of the government’s actions. Courts have defined “substantial” property damages in this context to be invasions that “preempt the owner’s right to enjoy the property for an extended period of time.” In other words, the property damage must render the damaged portion unsuitable for productive purposes. For instance, flooding that converts farmable land into wetlands is deemed substantial. However, damages are generally not considered substantial if the damaged property suffers a loss in value but retains some productive use. 

Options are limited for landowners who suffer property damages that do not meet the two-prong test for inverse condemnation. In theory, damages to property that do not amount to a taking could be remedied by filing a suit for trespass or nuisance. Unfortunately, many government agencies have sovereign immunity that absolves them of liability in tort actions. 

This column is not a substitute for legal advice. 

This column is the second in a three-part series on eminent domain. The next installment will discuss regulatory takings. eminent_domain

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