Ridge Line, Inc. v. U.S., 03-5015.

Citation346 F.3d 1346
Decision Date10 October 2003
Docket NumberNo. 03-5015.,03-5015.
PartiesRIDGE LINE, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

William C. Porth, Robinson & McElwee, PLLC, of Charleston, West Virginia, argued for plaintiff-appellant. With him on the brief were Kent J. George and Matthew S. Casto.

Mark R. Haag, Attorney, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Thomas L. Sansonetti, Assistant Attorney General; Stuart B. Schoenburg, and Katherine J. Barton, Attorneys. Of counsel on the brief was William B. Neel, Attorney, Office of the General Counsel, United States Postal Service, of Washington, DC.

Robert A. Klimek, Jr., Klimek, Kolodney & Casale, P.C., of Washington, DC, filed an amicus brief for the West Virginia Land and Mineral Owners Council.

Before MICHEL, CLEVENGER, and BRYSON, Circuit Judges.

MICHEL, Circuit Judge.

Ridge Line, Inc. appeals from a judgment following trial by the United States Court of Federal Claims, Ridge Line, Inc. v. United States, No. 98-CV-929, 2002 U.S. Claims LEXIS 240 (Fed.Cl. Sept. 4, 2002), holding that increased storm drainage caused by the construction of a Postal Service facility and associated parking lots and driveways did not constitute a taking of any real property interest of Ridge Line that would justify compensation under the Takings Clause of the United States Constitution. U.S. Const. amend. V. The trial court found that the affected portion of Ridge Line's land, a ravine known as South Hollow, was not effectually destroyed nor suffered a permanent and exclusive occupation by the increased runoff from the federal land uphill from Ridge Line's property and that in any event Ridge Line failed to demonstrate quantified damages for any erosion injury to South Hollow or diminished resale value thereof. Because the trial court (1) failed to address whether the increased storm drainage constituted a taking of a flowage easement by inverse condemnation as expressly argued by Ridge Line and (2) rejected as a permissible basis of damages in any event the cost of the flood control structures Ridge Line built and twice expanded for prevention of further damage to its land, we vacate the trial court's judgment and remand for further analysis and decision consistent with this opinion.

BACKGROUND

West Virginia is so mountainous that land development often leads to greatly increased flow and velocity of storm water runoff due to the reduced capacity of water absorption by the developed property. Ridge Line owns land on which is located Southridge Centre, the largest shopping center and mixed-use commercial development in West Virginia. In 1991, the government purchased a piece of property adjacent to and uphill from the shopping center to build a United States Postal Service facility. Storm water from both the Postal Service property and Southridge Centre drains into South Hollow, which lies between the Postal Service property and the shopping center. At the time the Postal Service developed its property, Ridge Line owned only a portion of South Hollow. In the years following the construction of the Postal Service facility, other portions of South Hollow were also acquired by Ridge Line.

When the Postal Service facility was completed in late 1993, storm water runoff into South Hollow sharply increased due to the construction of impervious surfaces on much of the government land. Evidence was offered that the development increased the storm runoff by 70-150%. According to Ridge Line's evidence, approximately 80% of post-development runoff into South Hollow in 1993 was coming from the Postal Service property as opposed to Ridge Line's property. Although the Postal Service facility included a drainage swale and drains and the Postal Service constructed a check dam on Ridge Line's property in South Hollow to control runoff, Ridge Line notes that storm water runoff into South Hollow became so extreme that it began to receive complaints of flooding from downstream neighbors, including a homeowner along Davis Creek which is fed by the effluent from South Hollow.

In 1993, Ridge Line built a storm water detention pond in South Hollow. Ridge Line claims that it was forced to construct the water detention facilities much earlier and on a larger scale than would have been required without the increased runoff caused by the government development. It asked the Postal Service to share in the cost of constructing the detention facilities. However, negotiation failed over the issue of the amount of the government's contribution. In the end, the government refused to pay anything. Ridge Line then sued the government in the Court of Federal Claims on December 19, 1998 claiming that the additional water flow caused by the development of the Postal Service facility constituted a taking by the government of a flowage easement entitling it to compensation under the Takings Clause of the United States Constitution. The taking was alleged to have occurred in 1993. Ridge Line sought the costs it has incurred to deal with the government's runoff and reasonably projected costs to be incurred in the future.

Between 1994 and 2000, Ridge Line expanded the shopping center with more recreational facilities. It also built new, larger storm water management facilities in South Hollow. Even more recently, Ridge Line added additional landfill to South Hollow, covering the original storm water detention pond and most or all of the portions of South Hollow that it claims were damaged by the erosion caused by storm water discharge from the Postal Service property.

The trial court, after a site inspection in 2002 and a two-and-a-half-day trial,1 found that the Postal Service development created at least a 70% increase in storm drainage onto Ridge Line's property. Ridge Line, 2002 U.S. Claims LEXIS 240, at *1. However, the trial court found that while the water might have "invaded" Ridge Line's property from time to time, the invasion was not sufficient to establish government "possession." Id. The court found also that Ridge Line did not suffer a permanent and exclusive occupation by the government that destroyed its possession, use, or disposal of its property, and that even if there were temporary invasions of the property, there was insufficient evidence of them because no loss of value of the property was shown and Ridge Line had already filled and altered the area complained of, obscuring the earlier erosion effects. Id. at *7-8. Further, the court found that Ridge Line could not prove damages because it did not produce appraisals of its property before and after the land erosion allegedly caused by the increased water runoff. Id. at *8-9.

After the trial court entered judgment for the government, Ridge Line timely appealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

A determination of whether a taking compensable under the Fifth Amendment has occurred is a question of law based on factual underpinnings. Alves v. United States, 133 F.3d 1454, 1456 (Fed. Cir.1998). Thus, we review the trial court's legal analysis and conclusion de novo and its fact-findings for clear error. Bass Enters. Prod. Co. v. United States, 133 F.3d 893, 895 (Fed.Cir.1998).

I.

Despite Ridge Line's contention that the taking in this case was the appropriation of a flowage easement by inverse condemnation, the trial court confined its analysis of liability to whether the government's actions constituted a "permanent and exclusive occupation." See Ridge Line, 2002 U.S. Claims LEXIS 240, at *7-8. A permanent and exclusive physical occupation of private land by or on the authority of the government is one incontestable case for compensation under the Takings Clause. E.g., Boise Cascade Corp. v. United States, 296 F.3d 1339, 1353 (Fed.Cir.2002). However, a permanent occupation need not exclude the property owner to be compensable as a taking. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436-38, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (holding that a compulsory installation of cables on apartment buildings pursuant to a state statute constituted a taking). Nor must the occupation be continuous. Thus, for purposes of takings analysis, "a `permanent physical occupation' has occurred ... where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises." Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831-32, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).

It is well established that the government may not take an easement without just compensation. United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947) ("Property is taken in the constitutional sense when inroads are made upon an owner's use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time."); Nollan, 483 U.S. at 834, 107 S.Ct. 3141 (stating "requiring uncompensated conveyance of the easement outright would violate the Fourteenth Amendment" and holding that conditioning a building permit upon a grant of an easement for public access across private beachfront property constituted a taking).

Similarly, government actions may not impose upon a private landowner a flowage easement without just compensation. Dickinson, 331 U.S. at 750-51, 67 S.Ct. 1382. In Dickinson, the government, in building a dam, raised the water level of a river, causing permanent flooding, erosion, and intermittent flooding of abutting landowners. Id. at 746-47, 67 S.Ct. 1382. Before the trial court, whose decision was affirmed by the United States...

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