Hurricane Harvey ravaged many Texas communities with flooding, leading to hundreds of thousands of insurance claims across the state. Some Harvey flood claims are a direct result of the unprecedented rain levels from the storm. However, some flood damage was the result of dam releases by the various government entities that control Texas waterways.
What do you do if your flood damage was the result not of a natural event but of a river authority’s decision to open a dam? If this is the case, you may be able to file an inverse condemnation claim against the responsible government entity.
What Is Inverse Condemnation?
Condemnation is the process by which a government entity forces the purchase of private land for a public use under Texas eminent domain laws. These laws require that the landowner be paid just compensation for their property. “Inverse condemnation” claims arise when government entities take, damage or destroy a landowner’s property without paying just compensation and without going through the proper channels to take the property as set out in Texas law.
These claims are very tricky and governed by a unique set of case law relating to when a government entity’s actions rise to the level of constituting a taking and when a governmental entity’s actions simply don’t result in a compensable taking.
The basis for inverse condemnation claims is the same as for all claims in eminent domain – Article I Sec. 17 of the Texas constitution, which says that private property cannot be “taken, damaged, or destroyed” for public use without the payment of just compensation.
The Supreme Court of Texas, in discussing inverse condemnation claims, has stated, “At the heart of Article I Section 17 of the Constitution lies the premise that the government should not force some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” This is true even when a government entity fails to recognize that their actions have “taken, damaged or destroyed” property.
Past Inverse Condemnation Cases
One simple illustration of an inverse condemnation would be a government entity placing a roadway across a landowner’s property without taking any steps to acquire the land through the proper eminent domain procedures set forth in Chapter 21 of the Texas Property Code. In this scenario, the public as a whole benefits from the roadway, but the burden and loss of property is being borne by one landowner alone, and this does not comply with the Texas Constitution. However, most inverse condemnation claims unfortunately do not arise from such straightforward facts.
Texas eminent domain lawyers Glenn Sodd, Clay Beard, Jason Sodd and Jody McSpadden of Dawson & Sodd represented the landowners in one of the most important opinions regarding inverse condemnation. Tarrant Regional Water District vs. Gragg, et. al., involved one of the largest cattle ranches in East Texas, which was bordered by and bisected by the Trinity River. The Tarrant Regional Water District, which operates the Richland Chambers Reservoir, released water from the reservoir, causing significant changes in flooding characteristics on the ranch and, as a result, caused direct impact to the Gragg Ranch, making it no longer usable for its intended purpose.
The Gragg Family, represented by Dawson & Sodd, sued the Tarrant Regional Water District, which resulted in a successful jury verdict and court of appeals opinion. The Texas Supreme Court heard the case and ruled in favor of the landowners, affirming the jury’s verdict that the Gragg Family was entitled to $10,214,122 in compensation as a result of the inverse taking of their property.
The Supreme Court’s opinion in this case says that, while government entities’ powers and functions are necessary and important, any use of those powers “which omit a decent regard for private property rights is both inaccurate and distorted.” The Court’s opinion discusses the difficulties of balancing the government’s right and need to appropriate private property for public use with landowners’ rights.
Negligence versus Intentional Actions
Since inverse condemnation claims are brought by the landowner, the landowner must show the property was taken, damaged, or destroyed for public use. Courts have struggled to balance between protecting the government from liability for actions that result from mere negligence, which the courts have said do not subject the government to liability, while also protecting landowners from bearing the burden of intentional governmental actions that cause damage and destruction to property interests.
One difficulty the courts have is deciding when actions taken by a government entity rise above mere negligence and rise to the level of intentional behavior by these entities, which is when the courts have said an inverse taking occurs. The Supreme Court in Gragg said “the requisite intent is present when a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result.”
Proving an Inverse Condemnation Claim
Applying this standard to the facts of a particular case, such as Hurricane Harvey flood claims, is particularly complex and difficult. However, if a specific, intentional act was done by a governmental entity that caused damage to a landowner’s property interests, the potential for an inverse condemnation claim exists.
One tricky element of proof in an inverse case is establishing the specific act – not a series of acts or a series of decisions, but one specific act. Another tricky element is establishing intent. The government entity must have known the harm would result or that it was substantially certain to result, and this is extremely fact specific and fact intensive in any inverse case.
While it is impossible to outline a detailed description of all law pertaining to the proof required in an inverse condemnation case, we’ve attempted to provide landowners with a basic description of the various issues that arise with these types of cases. Of course, every situation is unique and if you think you have an inverse condemnation claim as a result of a government entity’s actions, you should immediately contact the experienced Texas condemnation attorneys at Dawson & Sodd to discuss your legal options.
