McClendon v. City of Boaz

• Decision Date: 20 February 1981
• Citation: 395 So.2d 21
• Parties: H. B. McCLENDON and Jewel McClendon v. The CITY OF BOAZ. Christine DICKINSON v. The CITY OF BOAZ. 79-833, 79-834.
• Court: Alabama Supreme Court

Page 21

395 So.2d 21

H. B. McCLENDON and Jewel McClendon v. The CITY OF BOAZ.

Christine DICKINSON v. The CITY OF BOAZ.

79-833, 79-834.

Supreme Court of Alabama.

Feb. 20, 1981.

T. J. Carnes of Carnes & Carnes, Albertville, for appellant Christine Dickinson.

W. D. Wilkes, Jr. of Starnes, Smith & Wilkes, Guntersville, for appellants H. B. McClendon & Jewel, McClendon.

Philip L. Green, Boaz, for appellee.

SHORES, Justice.

These appeals are by plaintiffs, neighboring private property owners, from a partial summary judgment for defendant City of Boaz in an inverse condemnation action arising from the digging of a drainage ditch across plaintiffs' properties by defendants City of Boaz and Housing Authority of the City of Boaz. The grant of summary judgment was based on the grounds that the claims were barred by the two-year statute of limitations for claims against municipalities under § 11-47-23 and §§ 11-47-190, -191, and -192 of the Alabama Code of 1975. We reverse the judgment and remand the cause for trial on the issue of defendant City's taking of plaintiffs' property without compensation.

The plaintiffs assert that an official of the Housing Authority persuaded them each to grant a twenty-foot easement to the City of Boaz for the storm sewer and its future maintenance. The City paid them each one dollar "and other good and valuable consideration" for the easement. Plaintiffs assert that they were not paid the value of the property and did not waive further compensation.

Defendants' workmen first started work on plaintiffs' properties on October 28, 1976. They constructed a large open concrete drainage ditch some twenty feet in width. Plaintiffs allege that the ditch occupied more than the twenty-foot easement and that the defendants severely damaged plaintiffs' properties, excavating a large depression in each plaintiff's lawn, damaging trees on both properties, excavating and converting large quantities of plaintiffs' soil from the twenty-foot strip and from plaintiffs' lawns, and piling large heaps of dirt and debris on both lawns. The plaintiffs further allege that the defendants' current use of the ditch damages them. They assert that the ditch is constructed so that it does not drain well; water accumulates which smells foul and permits mosquitoes to breed; and that trash, debris, weeds, and raw human sewage collect in the ditch, causing a foul odor and a health hazard.

Plaintiffs assert that defendants worked on their property more or less continuously until December 10, 1976, returned during March of 1977 to haul off debris and worked on both properties from August 29 to September 1, 1977. At the trial, an official of defendant Housing Authority asserted that the construction was not yet complete.

On February 22, 1978, plaintiffs filed complaints against defendants City, Housing Authority, and S. J. Otinger Construction Company. On July 6, 1979, plaintiffs amended their complaints, setting them out in new form but specifically stating that they were "amend(ing) their complaint(s) heretofore filed." Plaintiffs alleged essentially the same facts, occurrences and damage as they had in their original complaints. They alleged misrepresentation, breach of agreement, trespass, nuisance, and conversion of dirt. On July 9, 1979, and February 4, 1980, they further amended their complaints to allege a taking of their property by defendants City and Housing Authority in breach of an implied contract and without just compensation, and to invoke the court's equity jurisdiction. The court consolidated the two actions and severed the following claims and set them for jury trial: Plaintiffs' claims against the Housing Authority and Otinger Construction Company, and plaintiffs' nuisance claim against the City arising out of events "occurring after July 6, 1979, and for six months prior thereto."

After trial, the court entered judgment in accord with the jury verdict for plaintiffs' claims for trespass and conversion of dirt against Otinger Construction Company and for breach of agreement and implied contract against defendant Housing Authority. The court granted defendant City's motion for summary judgment as to "all claims asserted against it in tort ... and ... for implied contract which allegedly arose because of the taking of plaintiff's property," on the basis of § 11-47-23, Alabama Code of 1975. The court further found:

... that the City of Boaz and The Housing Authority of Boaz have the right of ingress and egress on plaintiff's property, which was one of the subject matters of this suit, and the duty to do so, for the purpose of completing construction, removing debris, and for maintenance and operation of the drainage ditch referred to in this suit and, also, for removing dirt if the plaintiffs assert no claim thereto.

The plaintiffs appealed the court's final judgment granting the City's motion for summary judgment. After the appeal, the Housing Authority made payment into the circuit court of the damages awarded against the defendants.

In their appeal, the plaintiffs ask us to reverse the judgment and remand the cause for trial on the plaintiffs' inverse condemnation claim against the City. They assert that their action was not barred by § 11-47-23 as (1) the cause of action did not accrue until the taking was complete and (2) their amendments related back to the original February 22, 1978, complaint, which was filed less than two years after the cause of action accrued. They assert that the court should not have considered the testimony taken at trial as a basis for the motion for summary judgment and that the Housing Authority's payment of damages is not a satisfaction of the judgment and does not release the City from plaintiffs' claim.

The first issue presented is whether the statute of limitations has run on plaintiffs' inverse condemnation claim. Inverse condemnation is the taking of private property for public use without formal condemnation proceedings and without just compensation being paid by a governmental agency or entity which has the right or power of condemnation. Ex parte W. E. Carter, 395 So.2d 65 (1980). Such an action must be brought within the applicable statutory period. When the governmental entity in question is a municipality, an inverse condemnation claim must "be presented to the clerk for payment within two years from the accrual of said claim or be barred," § 11-47-23, Code of Alabama 1975. At what point does the cause of action accrue? We hold that the cause of action accrues when the taking is complete. If, as here, the City has full knowledge of the owner's asserted rights in the premises and has proceeded without exercising eminent domain powers in the manner prescribed by law, then the owner's inverse condemnation claim is timely if instituted before the project is completed, although more than two years after work was commenced.

In this holding, we are following a line of reasoning enunciated by the Supreme Court of the United States in United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947), and by the California Supreme Court in Pierpont Inn, Inc. v. State, 70 Cal.2d 282, 74 Cal.Rptr. 521, 449 P.2d 737 (1969). Dickinson concerned a taking due to the flooding of plaintiff's land by a federally-built dam. Pierpont involved plaintiff's land used for highway purposes. In the instant case, as in Dickinson (t)he Government could, of course, have taken appropriate proceedings to condemn as early as it chose both land and flowage easements. By such proceedings it could have fixed the time when the property was "taken." The Government chose not to do so. It left the taking to physical events, thereby putting on the owner the onus of determining the decisive moment in the process of acquisition by the United States when the fact of taking could no longer be in controversy.... The Fifth Amendment expresses a principle of fairness and not a technical rule of procedure enshrining old or new niceties regarding "causes of action" when they are born, whether they proliferate, and when they die. We are not now called upon to decide whether in a situation like this a landowner might be allowed to bring suit as soon as inundation threatens. Assuming that such an action would be sustained, it is not a good enough reason why he must sue then or have, from that moment, the statute of limitations run against him. If suit must be brought, lest he jeopardize his rights, as soon as his land is invaded, other contingencies would be running against him for instance, the uncertainty of the damage and the risk of res judicata against recovering later for damage as yet uncertain. The source of the entire claim the overflow due to...