Collier v. City of Springdale

• Decision Date: 05 June 1984
• Docket Number: No. 83-1567,83-1567
• Citation: 733 F.2d 1311
• Parties: , 14 Envtl. L. Rep. 20,584 Barron COLLIER, d/b/a Ozark Trout Farm, Appellee, v. CITY OF SPRINGDALE, Walter Turbo, Larry Clinkscales, Harold Henson, The Board of Directors of the City of Springdale, Springdale Water & Waste, a/k/a Springdale Water & Sewage Commission, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1311

733 F.2d 1311

20 ERC 2270, 14 Envtl. L. Rep. 20,584

Barron COLLIER, d/b/a Ozark Trout Farm, Appellee, v. CITY OF SPRINGDALE, Walter Turbo, Larry Clinkscales, Harold Henson, The Board of Directors of the City of Springdale, Springdale Water & Waste a/k/a Springdale Water &amp Sewage Commission, Appellants.

No. 83-1567.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 12, 1983.

Decided May 8, 1984.

Rehearing Denied June 5, 1984.

Thurston A. Thompson, Springdale, Ark., for appellant.

Richard Hipp, Fayetteville, Ark., for appellee.

Before McMILLIAN, JOHN R. GIBSON and BOWMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

The City of Springdale and the Springdale Water and Sewage Commission appeal from a final judgment entered in the District Court for the Western District of Arkansas after a jury trial awarding Barron Collier $36,740.00 for damages he sustained as the result of two sewage discharges. For reversal appellants argue that although Collier's property has been appropriated for public use, Arkansas law protects his constitutional right to just compensation and thus Collier has failed to demonstrate a constitutional violation cognizable under 42 U.S.C. Sec. 1983. We agree. For the reasons discussed below, we reverse and remand with directions that the district court dismiss this action.

I. FACTS

Springdale Water and Sewer Commission (Commission) is a public agency created by the City of Springdale, Arkansas (City). Pursuant to its authority, the Commission operates and maintains a system of sewage collection pipes, hydraulic lift stations and a sewage treatment facility. The Bradshaw lift station is a small lift station located in the southwest part of the City. In compliance with the then applicable state and federal regulations, the Bradshaw lift station was designed in 1963 by a qualified civil engineer. The appropriate state and federal agencies approved the plans and specifications for the Bradshaw lift station.

To permit access for repair in the event of a mechanical failure at the Bradshaw lift station, the original design included the installation of an overflow pipe. The overflow pipe was designed to carry sewage away from the lift station and discharge it into a segment of dry creek bed owned by the City. It is undisputed that this system was consistent with or above the state of the art at the time of its construction.

Throughout Arkansas there exist natural subsurface water systems. These natural "pipelines" are actually passages eroded from the underground limestone rock. Water from the land surface moves underground, travels rapidly through these underground systems and finally flows into springs located throughout Arkansas.

Barron Collier operates a trout farm situated on a downstream segment of the dry creek bed into which sewage is discharged from the Bradshaw lift station. His fish are raised in springs watered by an underground water system. On July 28, 1977, and July 13, 1980, the Bradshaw lift station experienced unforeseen mechanical failures necessitating sewage discharges through the overflow pipe. The sewage entered the ground and subsurface waters polluting Collier's springs and causing sudden massive fish kills at his trout farm.

Collier commenced this action claiming that his property had been taken without just compensation and due process in violation of the fourteenth amendment of the United States Constitution. Collier sought monetary damages from the City, the Commission and certain officials ¹ for the pollution of his springs resulting from the discharge of sewage by appellants. In addition, Collier sought injunctive relief against the future occurrence of such action. Redress was pursued under 42 U.S.C. Sec. 1983 and its jurisdictional counterpart 28 U.S.C. Sec. 1343. The district court denied several motions submitted by the City and the Commission including a motion to dismiss for failure to state a claim under 42 U.S.C. Sec. 1983. Collier ultimately prevailed at trial and was awarded $36,740.00 in damages; the district court granted an injunction enjoining the City and the Commission from permitting further sewage discharges at the Bradshaw lift station.

II. DISCUSSION

Section 1983 ² grants a civil remedy to persons deprived of constitutional rights by persons acting under the color of state law. In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (Parratt ), a state prison inmate was deprived of a $23.50 hobby kit that he had ordered because a prison official negligently mishandled the prison mail. Id. at 529-30, 101 S.Ct. at 1909-10. Stating that the fourteenth amendment protects only against deprivations without due process of law, the Court held that where deprivations of property are random and unauthorized and it is therefore impossible for the state to provide a meaningful predeprivation hearing, due process is satisfied by the existence of an adequate postdeprivation state remedy. Id. at 541, 101 S.Ct. at 1916.

Writing for the majority, Justice Rehnquist stated that

in any Sec. 1983 action the initial inquiry must focus on whether the two essential elements to a Sec. 1983 action are present: (1) whether the conduct complained of was committed by a person acting under the color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

Id. at 535, 101 S.Ct. at 1913. As in Parratt, it is clear that the alleged conduct of the City and the Commission satisfies the "under the color of state law" requirement and therefore we must only decide whether Collier has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States.

Collier alleges that his substantive right to just compensation under the fifth and fourteenth amendments ³ was violated when appellants "took" his fish and diminished the value of his property without any prior notice, hearing or compensation. ⁴ The City and the Commission concede that the sewage discharges on July 28, 1977, and July 13, 1980, caused the fish kills at Collier's trout farm, but argue that Collier's injuries are the result of lawful takings pursuant to the sovereign's power of eminent domain. Therefore, appellants argue, Collier is only entitled to just compensation for the loss of his fish under applicable state provisions and thus has failed to demonstrate a cognizable constitutional violation.

It is clear that the mere exercise of the sovereign's power of eminent domain is not offensive to due process. See Chicago, Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). The parties acknowledge that appellants had the authority under the United States Constitution and Arkansas Constitution to condemn private land for public use. Collier notes that the sewage discharges were in accordance with established state procedure and not random and unauthorized conduct by City officials. Thus Collier argues that Parratt requires that he be afforded notice and a hearing before his property is taken. See Parratt, 451 U.S. at 537, 101 S.Ct. at 1913. Long ago the Supreme Court made it clear that the fifth amendment of the United States Constitution "does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain and adequate provision for obtaining compensation before his occupancy is disturbed." Cherokee Nation v. Southern Kansas Ry., 135 U.S. 641, 659, 10 S.Ct. 965, 971, 34 L.Ed. 295 (1890). If the government chooses to dispense with formal condemnation proceedings prior to the seizure of private property for public use, then the constitution only requires that the property owner be able to bring an inverse condemnation action to compel just compensation. See Fountain v. Metropolitan Atlanta Rapid Transit Authority, 678 F.2d 1038, 1043 (11th Cir.1982) (Fountain ). Thus, it is well settled that a sovereign vested with the power of eminent domain may exercise that power consistent with the constitution without providing prior notice, hearing or compensation so long as there exists an adequate mechanism for obtaining compensation. See Yearsley v. Ross, 309 U.S. 18, 22, 60 S.Ct. 413, 415, 84 L.Ed. 554 (1940); Hurley v. Kincaid, 285 U.S. 95, 104, 52 S.Ct. 267, 269, 76 L.Ed. 637 (1932); Fountain, 678 F.2d at 1045 n. 13; Stringer v. United States, 471 F.2d 381, 383 (5th Cir.), cert. denied, 412 U.S. 943, 93 S.Ct. 2775, 37 L.Ed.2d 404 (1973); Light v. Blackwell, 472 F.Supp. 333, 337 (E.D.Ark.1979), aff'd mem., 620 F.2d 307 (8th Cir.1980) (Light ); Kao v. Red Lion Municipal Authority, 381 F.Supp. 1163, 1166 (M.D.Pa.1974) (Kao ). ⁵ Several courts have refused to find a cause of action under 42 U.S.C. Sec. 1983 where a plaintiff alleges a "taking" of his property by the state without due process without first attempting to avail himself of the state mechanisms for compensation following the de facto appropriation. For example, in Light the plaintiffs claimed that certain conduct by the Arkansas State Highway Commission amounted to a taking of their property without just compensation and the continuing torts of trespass, nuisance, and unreasonably depriving the plaintiffs of lateral support for their property. Equitable and monetary relief was sought pursuant to Sec. 1983. The court succinctly stated that "the plaintiffs here have not been deprived of due process since due process remedies are available to the plaintiffs in state court for the alleged taking of their property." 472 F.Supp. at 336. ⁶ The court refused to permit the property owners to bypass adequate Arkansas statutory and administrative provisions specifically designed to appropriately compensate such litigants within a minimum time frame. Id. at 338. Accord O'Grady v. City of Montpelier, 573 F.2d 747, 751 (2d Cir.1978); Elterich v. City of...