Eminent Domain Report

Yes!  And two separate groups recently learned this fact the hard way.  On April 17, the Eastern District of California issued two separate decisions dismissing two separate inverse condemnation claims with prejudice because the plaintiffs did not have an independent property interest in the subject property.  In Abarca v. Merck & Co. (E.D. Cal. Apr. 17, 2012) Case No. 1:07-cv-0388, a group of minor plaintiffs and a group of non-owner landscape plaintiffs filed an action against the County of Merced, the Merced Irrigation District, and Merced Drainage District, alleging, among other claims, that the defendants inversely condemned the subject property in 2006 when a deliberately and/or negligently designed, constructed, and/or maintained embankment failed and flooded the subject property. 

The defendants moved for summary judgment on the basis that the minor plaintiffs and non-owner landscape plaintiffs did not have an independent interest in the damaged property, and therefore could not maintain a claim for inverse condemnation.  The District Court, setting the stage for its eventual ruling, stated that:

To establish liability for inverse condemnation, a plaintiff must demonstrate four elements: (1) an interest in real or personal property; (2) that the government entity substantially participated in the planning, approval, construction, or operation of a public project or public improvement; (3) damage to the property; and (4) that the government entity's act or omission was a substantial cause of the damage.

The District Court then found that the minor plaintiffs who did not assert property damage claims apart from those suffered by their parents lacked the interest in property necessary to maintain an inverse claim.  The District Court also found that the non-owner landscape plaintiffs lacked the necessary property interest to maintain an inverse claim because they could not show that they had any cognizable legal interest in the damaged landscape at issue.  (See Minor Plaintiffs Decision; Non-Owner Landscape Plaintiffs Decision.) 

In a separate decision, relating to the same defendants and occurrence, but different plaintiffs (the "Dairy Plaintiffs"), the District Court denied a motion for summary judgment brought by the defendants on the basis that there were genuine issues of material fact.  The defendants argued that the Dairy Plaintiffs, who had the necessary interest in the subject property to maintain an inverse condemnation claim, were barred from asserting such a claim because of a provision in the 1917 deed for the subject property which granted the "right to temporarily flow the said land . . . without liability therefor when such flowing results from breaks in any ditch or canal . . . caused by any water coming from such canals or ditches or when caused by water turned into said natural channels . . . ." 

Essentially, the defendants argued that this provision granted them a flooding easement.  The District Court found, relying on Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, that the language in the deed did not create an easement, but was rather an exculpatory clause.  Analyzing the deed language in this light, the District Court found that the language was ambiguous as to whether it protected against only natural flooding, or also flooding resulting from deliberate or negligent acts.  Accordingly, because the defendants did not present any undisputed evidence regarding this ambiguity, the Court denied the motion for summary judgment.  The District Court also found that there was an issue of fact as to whether the flooding was "for the use and benefit of the canal system."  (Dairy Plaintiffs Decision.)

The lessons learned from these decisions are not novel or complex.  Instead, they are simply a reminder of the basics.  Does the plaintiff have a cognizable property interest?