An interesting decision from the California Court of Appeals (First Appellate District) about a distinct branch of inverse condemnation law — government liability for flooding and erosion.
Generally, any physical invasion of property by or caused by the government, no matter how small, is compensable, either in eminent domain, inverse condemnation, or tort. See, e.g., Pumpelly v. Green Bay Mississippi Canal Co., 80 U.S. (13 Wall.) 166 (1871). This is true whether the invasion is by government agents, see, e.g., D & D Land Holdings v. United States, No. 06-877L (Court of Fed. Cl., June 30, 2008), members of the public at government invitation, see, e.g., Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987); Kaiser Aetna v. United States, 444 U.S. 164 (1979), or by permanent or temporary floodwaters. See, e.g., Jacobs v. United States, 290 U.S. 13 (1933).
In Skoumbas v. City of Orinda, No. A117960 (Cal. Ct. App. July 31, 2008), the court held that a municipal government could be liable for flooding and erosion from water discharged from a storm drain, even if the government did not own the entire drainage system. After its property was eroded by stormwater discharged from a drainage system that was partially privately constructed and owned, and partially owned and maintained by the city, the landowner sued the city for inverse condemnation. The city asserted it could not be liable because it did not own or control the lower portion of the drain. The trial court agreed with the city and dismissed the case.
The court of appeals reversed. The opinion contains a short summary of California’s law of inverse condemnation related to flooding and surface water that is worth reviewing. See slip op. at 6-9. The city did not dispute that it owned part of the drainage system, and the court held that “the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” Slip op. at 1.
The court held that the city’s ownership of a part of the system made it “potentially liable for damage substantially caused by the City’s unreasonable diversion of water through the City-owned portions of the system.” Slip op. at 6. If the city’s improvements have a “substantial cause-and-effect relationship” to the damage to the plaintiff’s land, it could be liable in inverse condemnation. Slip op. at 10.
Read the court’s opinion here.