Floods and Flooding

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Devillier

Note: this is the second of our posts on the U.S. Supreme Court’s recent decision in Devillier v. Texas. The first — which tries to put the weird post-opinion controversy over which party “won” at the Supreme Court into its proper perspective — is here.

In this post we’ll cover the case’s facts, the odd procedural path that Texas dragged everyone through (only ultimately abandon a key position once at the Supreme Court), and what the Court actually decided, if anything.

The State Flooding Private Property is a Taking Under Everyone’s Constitutions

After the Texas DOT flooded his property as part of a freeway project by creating a dam that caused rainwater to collect on his land, Devillier and other landowners sued the State of Texas for a taking, aka inverse condemnation.

The state flooding someone’s property is one of those “classic” cases which are considered takings, …

Continue Reading Devillier v. Texas (Part II): After Rope-a-Dope By Texas, Unanimous SCOTUS Saves The State Immunity Issue For Later

The winner takes it all
The loser’s standing small
Beside the victory
That’s her destiny

Note: this is the first of a short series of posts on the U.S. Supreme Court’s recent decision in Devillier v. Texas.

In Part II, we’ll cover the case, the procedural path that Texas dragged everyone through, only to abandon it at the Supreme  Court), and what the Court actually decided, if anything,

Three Common Questions for Lawyers

In the classroom, I often ask students to use their intuition to guess the three most common questions that lawyers almost always get from potential clients. Put yourself in a client’s shoes: what would you want to know?

The students mostly get it right. “What’s this going to cost?” Check. “How long will this take?” Check. And perhaps most obviously, “What are my chances of winning?“

That last…

Continue Reading In Devillier v. Texas, The Winner Takes It All (Part I)

ALI-CLE brochure cover page

When it comes to the longstanding ALI-CLE American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conferences, we’re always ready to go. You know that. But this year’s version — the 41st — was buzzing like no other in recent memory.

Maybe it was the New Orleans venue with its atmo, food, and music for our after-class activities, or even the timing (the second-to-last week on the Mardi Gras parade season, and our conference hotel was right on the routes). It might have been the nice weather (oh, it rained buckets one evening, but there wasn’t an ice storm like we experienced in Austin in 2023). Or maybe it was the capacity crowd, and new topics and speakers on the agenda. Or maybe it was just the prospect of seeing our friends and colleagues again after a year.

Here’s a photo essay of some of the Conference highlights.

And…

Continue Reading Pass A Good Time: Our Report From The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

Don’t miss out!

We promise: this is the last time we’re going to try to entice you to the upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference in New Orleans. We are getting close to capacity, but there is still room. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin last year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that.

Continue Reading No FOMO: There’s Still Room For You To Join Us In New Orleans Feb 1-3, 2024 For The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference

ALI-CLE brochure cover page

Here’s the brochure and the full agenda and registration information for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference at the JW Marriott in New Orleans, February 1-3, 2024.

This is the long-running nationally-focused conference on all things eminent domain, takings, valuation, and related. We have three tracks, from which you can choose a la carte – Practice, Substantive, and Condemnation 101:

For over 40 years, we’ve been bringing eminent domain practitioners together to examine the latest issues, engage in healthy debate, and get the information they need to stay current in their practice. This year – our 41st – is THE perfect time to reunite with your eminent domain colleagues. There will be plentiful opportunities to meet and mingle with the faculty and other registrants – throughout the conference and at evening social events. Attendees come back year after year to make new friendships and renew…

Continue Reading Here’s The Program For The 41st ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

HSBA 10-2023

Yesterday, during the Annual Meeting of the Hawaii State Bar Association, we participated in a program sponsored by the Real Property and Financial Services Section, “Inverse Condemnation & Paying for Disasters.”

As you can see above, we joined lawprofs Shelley Saxer and David Callies to share thoughts about inverse claims, and the difference between these property arguments and tort negligence claims.

Here are some of the key cases and materials which we mentioned (or should have):

…
Continue Reading Links And Materials From “Inverse Condemnation & Paying for Disasters”

Why is it, you ask, that the ALI-CLE Eminent Domain & Land Valuation Litigation Conference (scheduled next February 1-3, 2024, in New Orleans) is an event that seems to be growing in popularity and attendance. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin earlier this year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes…

Continue Reading ALI-CLE’s Eminent Domain & Land Valuation Litigation Conference (Feb 1-3, 2024, New Orleans): Why Attend? Here’s Why.

We’re posting this Complaint, not because it raises any new or novel issue, but because one of the plaintiff/property owners is San Francisco 49ers legend Joe Montana, who is suing San Francisco, alleging that the city’s maintenance of its stormwater/wastewater system (yes, the systems are one and the same) caused sewage to flood their Marina district homes.

Read the story here from SF Gate (“49ers legend Joe Montana sues San Francisco alleging ‘toxic fecal’ matter in home“).

We’re going to dust off the California Supreme Court’s latest ruling on inverse condemnation liability for flooding, since we haven’t looked at the doctrine in-depth in a while.

Complaint for Damages, Declaratory and Injunctive Relief, Armstrong v. City and County of San Francisco, No…

Continue Reading Asserting His Property Right To Exclude “toxic fecal matter,” Joe Montana Sues San Francisco For Inverse Condemnation

In Masloka v. Public Utility District No. 1, No. 101241-1 (Aug. 3, 2023), the Washington Supreme Court held that a takings claim did not automatically transfer to a new property owner when the property was sold.

Your first reaction might be like ours, “what about Palazzolo!?” Didn’t that case say that transfer of property after an alleged taking does not wipe out the transferee’s right to assert a takings claim:

Were we to accept the State’s rule, the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect, to put an expiration date on the Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.

Palazzolo, 533 U.S. at 607.

So…

Continue Reading Washington: “The right to inverse condemnation belongs to the property owner at the time of the taking; the right does not pass to a subsequent purchaser unless expressly conveyed.”

Check out this now-under-consideration Petition for Review, which asks the California Supreme Court to take up a case involving Murderers Creek, in Pleasant Hill, California. (Now there’s a jarring juxtaposition for you.)

The case started off as a “routine inverse condemnation case.” Pet. at 2. When Murderers Creek flooded, it damaged the plaintiffs’ land. The County, the plaintiffs allege, didn’t maintain a 40-year old concrete spillway which is part of a drainage system the County required a private developer to install in the 1970s as a condition of subdivision. The County never actually took over the drainage system, but it did accept the dedication “for recording only.”

The plaintiffs said this should have been enough to establish a claim for inverse against the County: it has been a longstanding rule in California that drainage infrastructure that diverts surface waters onto private property triggers inverse liability even if privately…

Continue Reading California Supreme Court Reviewing The Murderer’s Creek Inverse Case