Robinson v. City of Ashdown
| Decision Date | 29 January 1990 |
| Docket Number | No. 89-235,89-235 |
| Citation | 783 S.W.2d 53,301 Ark. 226 |
| Parties | Willie D. ROBINSON and Olivia Robinson, Appellants, v. CITY OF ASHDOWN, Appellee. |
| Court | Arkansas Supreme Court |
Sheila F. Campbell, Little Rock, for appellants.
Jay P. Metzger, Ashdown, for appellee.
This is an inverse condemnation case. The appellants, Willie D. and Olivia Robinson, presented evidence that their home had, over a nine-year period, and despite their continued pleas to city officials and the city council for relief, been flooded intermittently with effluent from the sewer system constructed and operated by the appellee City of Ashdown. They sought compensation for the taking of their property which their evidence showed had been substantially reduced in value by the flooding. The court held that the Robinsons had shown only negligence on the part of the city and directed a verdict against them on the basis of the city's immunity from actions in tort. See Ark.Code Ann. § 21-9-301 (1987). The question presented to us is whether instances of negligence, with respect to which the city has immunity from suit, may, if sustained a long time, amount to inverse condemnation. We hold that in such circumstances inverse condemnation occurs, and the judgment is reversed and remanded.
The Robinsons moved into their newly built house in 1974 or 1975. In the winter of 1978-79 they began to have sewer problems. Raw effluent came through their toilets and shower floor opening. At first Mr. Robinson thought there was a problem with his service line connecting his house to the sewer line under the street in front of the house. Plumbers investigated and found no problem with the Robinsons' service line. It was clear that the sewage was backing up from a source outside the Robinsons' house.
The Robinsons presented the testimony of Ray Burk, an engineer hired by them to study the problem. Burk determined that the elevations of the openings in the Robinson home were only slightly higher than that of the "wet well" at a lift station into which the city's sewage was supposed to flow before being pumped to a higher elevation for processing. Lift pumps at the wet well were designed to pump the raw sewage to a higher elevation for processing and, when operating normally, to keep the well from overflowing. When the well did overflow, the sewage backed up into the lines. There is a manhole near the Robinsons' home through which access is obtained to the city sewer line. Sewage backing up from the lift station flooded the manhole from time to time, and when the manhole filled, the Robinsons' home was the next lowest point, and the sewage would come out there. On many occasions, Mr. Robinson went to the lift station to turn on the lift pumps by throwing a breaker switch. Mr. Burk testified that the pumps were apparently adequate to control the problem when they were running.
The problem continued over the years. Mr. Robinson had employees of the city water department inspect his home, and he presented the matter to the city council on more than one occasion without relief. Photographs introduced into evidence showed extensive water damage to the home. Mr. Robinson made an opening in the service line in his yard and dug a hole there in an attempt to take care of the overflow. He testified that the smell was ever-present in his house and yard. His family could not use the home to entertain friends, and they feared for their physical well-being.
Mrs. Robinson testified that one of their children once came to her and said there were "flowers" growing in the shower in the master bedroom. It was a fungus. Mrs. Robinson testified that the house was constantly smelly and damp and that she and her daughters had had fungal infections resulting from germs in the shower stall.
On cross-examination, Mrs. Robinson stated that the problem had lessened in 1986. While the flooding would no longer wet the carpets, the toilets continued to overflow and the water "might ... hit the edges." She said the house smells bad now, and she and her family cannot enjoy it at all.
The technical testimony presented by the Robinsons and by the city conflicted. The mayor of Ashdown, Charles Patterson, who is an engineer with considerable experience designing city sewer systems, testified that Mr. Burk was wrong and that the problem could not have originated with the lift station as Burk had explained it. However, Bill Duckett, a foreman in the city water department testified that the lift pumps in the lift station nearest the Robinson home would stop running in periods of heavy rainfall. Restarting them would cause the water level to fall, but it would take 24 hours before the area of the Robinson home would be relieved. Mayor Patterson testified that the lift pumps were replaced after he became mayor in 1987.
Negligence, nuisance, and inverse condemnation
In McLaughlin v. City of Hope, 107 Ark. 442, 155 S.W. 910 (1913), we clearly recognized a cause of action for inverse condemnation, although we did not describe it in those words. A miller leased land through which a stream passed. The city, which was an upper riparian landowner, began to discharge sewage into the stream. That made the water unsuitable for producing steam to run the mill. The miller brought an action for damages. The city defended on the basis of its sovereign immunity. The trial court sustained a demurrer to the complaint. We reversed and held that, although the complaint could have been worded more artfully, it was not a claim for negligence or wrongdoing on the part of the city but was a claim for compensation due pursuant to Ark.Const. art. 2, § 22, for the taking of property. See also Jones v. Sewer Imp. Dist. No. 3 of Rogers, 119 Ark. 166, 177 S.W. 888 (1915), where we noted with apparent approval that the plaintiff in a nuisance abatement proceeding had, in a separate proceeding in circuit court, been allowed to recover for a taking of his property by a sewer improvement district due to the city's negligent operation of a septic tank.
In part III of their complaint, the Robinsons clearly stated a claim for "a taking of the plaintiff's property" which "condemned and destroyed all reasonable value of the property" requiring that the plaintiffs be "compensated in full for their loss." The question becomes whether a "taking" may occur as the result of the city's negligent operation of its sewer plant. The trial court's ruling suggested that by proving the city's negligence the Robinsons killed their inverse condemnation or "taking" claim. We think not.
As originally conceived and developed, the concept of inverse condemnation was a remedy for physical taking of private property without following eminent domain procedures. "Fault" has nothing to do with eminent domain, and it is not bare trespass or negligence which results in inverse condemnation but something which amounts to a de facto or common law "taking." J. Sackman & P. Rohan, Nichols on Eminent Domain, § 8.1 (Rev. 3d ed. 1985, Supp.1987). Inverse condemnation is thus a cause of action against a governmental defendant to recover the value of property which has been taken in fact by a governmental entity although not through eminent domain procedures.
We are aware that it is commonly stated that neither negligent acts committed during routine operation of a public improvement nor other negligence having no relationship to the function of the public work as it was conceived gives rise to a claim for inverse condemnation. See, e.g., Yee v. City of Sausalito, 141 Cal.App.3d 917, 190 Cal.Rptr. 595 (1983). Although injury to property through negligence or trespass does not, without more, qualify as a taking, it has been held that a continuing trespass or nuisance can ripen into inverse condemnation. City of Jacksonville v. Schumann, 167 So.2d 95 (Fla.App.1964).
Courts have used both nuisance and trespass theories to overcome the general rule that negligence does not result in inverse condemnation. The author of Annotation, Taking For Public Purposes, 2 A.L.R.2d 677 (1948), discusses the wide variety of rationales among the cases from various states and even within the decisions of the courts of single states in which it has been held that negligence based acts by governmental entities constitute inverse condemnation. It is noted that actions brought in an attempt to avoid municipal tort immunity
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