In Finch v. Carroll Cnty., No. CV-14-251 (Oct. 22, 2014), the local county judge asked the property owners to donate gravel. That's gravel, not "gavel," for those of you, like us, who were wondering. (We have no idea why, or whether this is common. But there it is.)
But in removing the "several hundred truck loads of gravel," the county left behind debris, which several weeks later ended up damming the creek, and coupled with a lot of rain, flooded the owners' property, damaging "their cattle, chickens, trees, and the chicken structures that were near the creek." Slip op. at 1. They sued the county and the judge for negligence and inverse condemnation.
The court of appeals upheld the trial court's grant of summary judgment for the defendants. on both claims. A county is immune from tort liability for its negligence under Arkansas law (and pretty much the law everywhere else, for that matter). As for takings, the court held that the plaintiffs alleged a one-time event, and "[a]lthough permanency is not a requirement to establish an inverse-condemnation claim, negligence sustained over a long period of time resulting in a continuing trespass or nuisance can ripen into inverse condemnation. Here, there was but a single act of negligence and only one flood, which coincided with a natural weather anomaly." Slip op. at 4.
The court concluded that the inverse condemnation claim failed "as a matter of law," because "there was no continuing, recurrent, or substantial trespass here, and no proof that the value of the Finches' property had substantially diminished[.]" Id.
Tell that to the chickens, Your Honors!
Final note: yes, we understand that there is a difference between the facts here, and the facts of the intentional government flooding in Arkansas Game & Fish which resulted in the Supreme Court rejecting a categorical rule that a single flood can't be a taking, and which resulted in the Federal Circuit on remand determining that the single flood was a taking. There, the flooding was purposeful, while in Finch it was, by all accounts, merely an unintended consequence of the county's failure to police up its mess. But still, we would have appreciated some acknowledgement by the court of why the categorical no-takings rule it applied in this case should be different.
Something tells us that the difference in outcome here might have more to do with the identify of the second defendant, than any objective difference between this case and Arkansas Game.
Finch v. Carroll Cnty., No. CV-14-251 (Ark. App. Oct. 22, 2014)