Here's another one we've been meaning to post for a while. In Ex parte Alabama Dep't of Transportation, No.1101439 (Dec. 6, 2013), the Alabama Supreme Court concluded that inverse condemnation is the right cause of action when the government causes contaminated water to enter an owner's property, resulting in (alleged) damage.
The plaintiff alleged that ALDOT used a chemical solvent or degreaser that was poured into sewers and eventually found its way into the groundwater which it pumped onto the plaintiff's property. It sued ALDOT and Cooper (ALDOT's director) for trespass and inverse condemnation, and later added a claim for fraud and bad faith. The owner asserted that if ALDOT wanted to use its property as a storage for its contaminated water, it should have condemned a drainage easement first. The defendants asserted they were immune, and when the trial court refused to dismiss the case, they sought a writ of mandamus from the Alabama Supreme Court.
The court held that ALDOT was absolutely immune but the director was not. Although he was immune from suits for trespass, he could be sued for inverse condemnation in his representative capacity. Thus, the property owner could proceed against the director in his official capacity only under a theory of inverse condemnation.
ALDOT argued that the claim was not pled properly, and that the plaintiff merely alleged that by pumping the contaminant-filled water onto its property, the defendants had merely "injured" the property, and not "committed an actual physical taking." Slip op. at 13. The court held that although it was correct that the plaintiffs alleged that ALDOT's actions damaged its land, it also alleged a taking for public use. Slip op. at 17. The facts alleged showed that the plaintiff properly claimed a physical invasion taking.
The court also rejected the argument that the plaintiff's request for money damages rendered the director immune, since under Alabama law, a suit against a state official seeking damages is a suit against the state itself, which is barred. The court held that inverse condemnation suits are an exception to that general rule, and that by a plaintiff's seeking of compensation does not make the official immune:
The very point of an inverse-condemnation action is for the private property owner to be able to recover compensation for the government's use of his or her property that he or she would have received had the government initiated eminent-domain proceedings as it was supposed to do.
Slip op. at 20.