Sewer Floods for Public Use

Anthony Sanders · July 15, 2022

This week’s State Con Law Case of the Week is a recent property rights opinion from the Montana Supreme Court, Wittman v. City of Billings. Our friend Robert Thomas blogged about it earlier this week, which you can read here. I just wanted to briefly highlight a couple items from it here at the CJE Blog.

The case concerns completely blameless homeowners whose basement was suddenly flooded with over 1,000 gallons of raw sewage from the city of Billings’ sewer system. This was because of a grease clog in the main pipes that, apparently, happens in all sewer systems from time-to-time as long as enough people in the area put grease down the drain. Which, no matter what cities do to educate everyone, also always happens. This kind of flooding only hits a very small percentage of homeowners, but it was known to the city that it would hit somebody.

The Montana Constitution has a takings clause that includes “damagings” language, something we recently discussed in the context of the Texas Constitution. Article II, Section 29 of the Montana Constitution reads, in relevant part, “Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss . . .” The homeowners argued that their basement was “damaged” and that it was due to the public use of providing a sewer system. Therefore, they were owed just compensation. They tried to obtain this through an inverse condemnation lawsuit, a “reverse condemnation” action. There, a property owner argues that the government has already “taken” (or “damaged”) the property (instead of trying to take it through its own lawsuit) and that now compensation is due.

The majority essentially found that there was no taking because there was no “proximate cause” for the flooding. It was so unforeseeable that the homeowners’ particular home would flood and the city did not, of course, intend to actually flood it, so the unfortunate incident did not rise to the level of a taking. It’s a bit more complicated than that, but that’s essentially the court’s reasoning. It also said that the city’s actions didn’t implicate the “damaged” language of the Constitution—which is distinct from the “taken” language—because there wasn’t a permanent occupation of the basement, just a temporary flood.

The more interesting part of the decision is the dissent, which stretches for 67 pages, well more than double the length of the majority. Justice Dirk Sandefur disagrees strongly with the majority’s treatment of the “damaged” clause, and also with its use of causation principles from tort law. He also delves into some interesting distinctions between takings/damagings claims and substantive due process claims involving property. The two are often confused and his dissent is a good reminder about how to think about the two distinct areas.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.

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