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Inverse Condemnation Claims – Sound Transit

Posted Thursday, September 20, 2018 by Christopher L. Thayer

Division II of the Washington Court of Appeals recently addressed a situation where a landowner asserted an inverse condemnation claim against Sound Transit and the City of Tacoma for flood damage which plaintiff claimed was caused by the negligence of Sound Transit and the City of Tacoma. * See, Ruth v. Sound Transit and City of Tacoma*, No. 50458-8-II (September 11, 2018). This is an unpublished decision, but provides a nice primer on the law of inverse condemnation in Washington.

Article I, section 16 of the Washington Constitution limits the State’s inherent power of eminent domain by requiring the government to pay reasonable compensation for taking or damaging private property for public use. Phillips v. King County, 136 Wn.2d 946 (1998).

Inverse condemnation is an action instituted by a landowner “to recover the value of property which has been appropriated in fact, but with no formal exercise of the power of eminent domain.” Id., at 957. The elements of an inverse condemnation claim are (1) a taking or damaging (2) of private property (3) for public use (4) without just compensation (5) by a governmental entity that has not instituted formal eminent domain proceedings. Id. Under such circumstances, a private land owner may sue the appropriate governmental entity seeking compensation for their loss of their property or the damages to the property.

With regard to the first element, a taking or damaging occurs when the government invades or interferes with the use and enjoyment of a person’s property, causing the property to decline in market value. Martin v. Port of Seattle, 64 Wn. 2d 309 (1964). A landowner alleging an inverse condemnation must show more than a tortious interference with the use or enjoyment of his property. Borden v. City of Olympia, 113 Wn. App. 359 (2002). Flooding can provide the bases for an inverse condemnation as an “invasion” of property if the invasion is “permanent or recurring” or involves “‘a chronic and unreasonable pattern of behavior by the government.’” Gaines v. Pierce County, 66 Wn. App. 715 (1992).

More specifically, a municipality may not collect surface water by artificial means, channel the water, and deposit it on private property, thereby causing damage, unless the municipality compensates the owner. Wilber Dev. Corp. v. Les Rowland Constr., Inc., 83 Wn.2d 871 (1974).

An inverse condemnation claim may be proven by (1) the “diversion of waters from the direction in which they would naturally flow and onto the land of plaintiff” or (2) where “the amount of water has been increased.” Id. The measure of damages in an inverse condemnation case is the diminution in the fair market value of the property caused by the governmental taking or damage to the property. Peterson v. Port of Seattle, 94 Wn. 2d 479 (1980).

In Ruth, the Court of Appeals noted plaintiff had not retained an expert to testify about the issue of damages or the diminution in value to the property. Without this, and based on some other procedural issues (including lapse of the applicable statute of limitations), the Court of Appeals affirmed the trial court’s dismissal of plaintiff’s case.

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