A one-time flood can result in government liability for inverse condemnation. That's the holding of the Virginia Supreme Court in Livingston v. Virginia Dep't of Transportation, No. 101006 (Va. June 7, 2012), in which the court reversed the trial court demurrer (dismissal of the case for failure to state a claim).
The plaintiffs claim that in building the Beltway in the 1960's, VDOT straigtened and relocated a portion of Cameron Run, a stream feeding into the Potomac River. They also claimed that VDOT's failed to maintain the relocated channel in the intervening years. The latter failure resulted in their homes being flooded with sewage after a massive rainfall in 2006.
The homeowner filed an inverse action in state court to recover just compenation under the Virginia Constitution, which requires compensation when private property is taken or damaged for public use. The defedants demurred, arguing that they plaintiffs lacked standing since they did not own the homes in the 1960's, and because a single instance of flooding could not result in inverse condemnation liability. The Supreme Court reversed:
To the extent that the circuit court held that a single occurrence of flooding cannot support an inverse condemnation claim, it erred. We find nothing in Article I, Section 11's text or history that limits a property owner's right to just compensation for a damaging to only multiple occurrences of flooding. Further, our case law holds that a single occurrence of flooding can support an inverse condemnation claim. In Hampton Roads Sanitation District v. McDonnell, 234 Va. 235, 360 S.E.2d 841 (1987), we said that a property owner could bring a new inverse condemnation suit against the City of Hampton Roads each time it discharged sewage onto his property. Id. at 239, 360 S.E.2d at 844. We explained: "[T]he original discharge of sewage in 1969 did not produce all the damage to the property. The discharges were not continuous; instead, they occurred only at intervals. Thus, each discharge inflicted a new injury for which [the property owner] had a separate cause of action." Id. (emphasis added).
Slip op. at 11-12. The Supreme Court also rejected the argument that the flood was an "extraordinary event" and thus could not result in inverse condemnation liability. The so-called "act of God" defense is for the defendants to prove (which they can on remand), but is not a per se bar to liability.
The Supreme Court also rejected the claim that the plaintiffs lacked standing, holding that the plaintiffs were not seeking compensation for the straightening and relocation of Cameron Run, but for the failure to maintain the diverted stream. It was the failure to maintain the concrete channel, not the diversion itself, that resulted in the flooding. See slip op. at 15-16 & n.6. The Court also rejected VDOT's other claims (the taking was not for public use, the flooding did not damage any of plaintiffs' appurtenant rights, it is only liable for affirmative acts and not omissions).
Two justices dissented, arguing that there can be no liability for inverse condemnation unless property is damaged or taken as the result of the VDOT is exercising its power of eminent domain:
Today the Court sanctions what can only be deemed a "constitutional tort," based on a theory of causation, not the principles of condemnation. Noticeably absent from the allegations in this case is a contention, or even facts purporting to show, that VDOT exercised its power of eminent domain in damaging Plaintiffs' properties. This deficiency is fatal to the Plaintiffs' claim since there is no cause of action for inverse condemnation without the exercise of such power.
Slip op. at 29-30. The entire opinion is worth a read.
Livingston v. Virginia Dep't of Transportation, No. 101006 (June 7, 2012)
