A Brief Look at Drainage Issues and Inverse Condemnation.

Real Estate Law

Eminent domain is the government’s power to take private property for a public purpose. When the government “takes” real property under its eminent domain power, for example, to expand a road, the government must compensate the property owner.

Generally, when the government acts under its powers of eminent domain, it does so through formal condemnation proceedings.

However, there is another way in which government action (or inaction) can rise to the level of a “taking” of property without benefit of formal proceedings.

Known as “inverse condemnation,” a taking can occur when the government unlawfully interferes with an owner’s right to enjoy the land—either temporarily or permanently.

Issues related to inverse condemnation can arise in a number of ways. For example, a claim for inverse condemnation may arise if a county or municipality takes some type of affirmative action (for a public purpose) that causes a nuisance or a trespass onto private property.

In today’s post we will discuss one way in which inverse condemnation can occur:  by causing drainage issues.

Inverse Condemnation Caused by Drainage Problems

For purposes of today’s discussion, assume that a local government has made additions or changes to existing drainage facilities and that this has caused water and/or sewage to discharge onto neighboring real property. Assume also that this flooding of the property has caused damage to the property or to the people living there— for example, where bacteria from sewage has contaminated a home and the people living there.

With those simple facts as background, we now turn to inverse condemnation.

As a general proposition, all property must accept any natural runoff from neighboring lands.

However, if, as in our example, the government (as the property owner) causes an artificial increase or concentration of water to discharge onto another’s property, this can give rise to a cause of action.

The most common causes of action asserted in flooding situations are nuisance or trespass.

Briefly, a nuisance is the unreasonable or unlawful use of property which causes damage to others.  A trespass is the unlawful entering or remaining on, or causing the unlawful entering or remaining on property which causes damage.

The flooding of downstream property caused by the actions of an upstream property owner, or increased silt deposits on a downstream landowner’s property has been held to constitute a actionable nuisance. Likewise, flooding caused by an upstream drainage ditch has also been held by the courts to be actionable interference with the enjoyment of property.

In today’s example, then, the government’s actions in making changes to drainage facilities which caused damage (either property damage or personal injury) to the downstream property owners amounts to inverse condemnation. It is a “taking” for which compensation can be sought.

These areas of real property law are extraordinarily complex. If you need more information or have questions, consult with experienced real property counsel.

Our Experience is Your Advantage.

At the Law Offices of Mark Weinstein, P.C., our clients benefit from our experience. We have extensive experience in real estate law. We have offices in Cumming, and we serve clients in Atlanta, Gainesville, Gwinnett County, Bartow County, Hall County, Henry County, Cherokee County, Clayton County, Cobb County, and other counties throughout Georgia. To find out what we can do for you, call us today at: 770-888-7707. Or you can e-mail us with inquiries at: lawofficesofmarkweinstein@gmail.com

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