Livingston v. Virginia Dept. of Transp.

Present: All the Justices

GEOFF LIVINGSTON, ET AL.
OPINION BY
v. Record No. 101006 JUSTICE LEROY F. MILLETTE, JR.
June 7, 2012
VIRGINIA DEPARTMENT OF
TRANSPORTATION

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert J. Smith, Judge

Geoff Livingston and 134 other homeowners or renters

(collectively Plaintiffs) in Fairfax County's (County)

Huntington subdivision brought this inverse condemnation suit

against the County and the Virginia Department of

Transportation (VDOT) after their homes were flooded during a

severe storm in the summer of 2006. The circuit court

dismissed the suit on demurrer, holding in relevant part that a

single occurrence of flooding cannot support an inverse

condemnation claim under Article I, Section 11 of the

Constitution of Virginia. We disagree and reverse.

I.

A.

Because this case arises from a demurrer, we recite the

facts as they are alleged in the Plaintiffs' second amended

complaint. Station #2, LLC v. Lynch, 280 Va. 166, 169, 695

S.E.2d 537, 539 (2010). On June 25, 2006, the Plaintiffs were

homeowners or renters in Huntington, which is located along the

southern bank of Cameron Run, a tributary stream of the Potomac

1
River, near the County's border with the City of Alexandria.

That evening, a storm produced "long periods of precipitation

with high intensity downpours," causing significant flooding.

In less than two hours, the flow depth of Cameron Run increased

from just under 2 feet to almost 14 feet. The storm created

the second-highest water flow in the channel since 1953. 1

The floodwaters, blocked on the north by the concrete mass

of the Capital Beltway, overwhelmed the southern bank of

Cameron Run and engulfed much of Huntington. Floodwater backed

up through storm and sanitary sewers and filled the basements

of many of the Plaintiffs' homes with sewage-laced water. The

flood damaged the Plaintiffs' homes and personal property.

The Plaintiffs allege that the June 2006 flood was caused

by the acts or omissions of the County and VDOT. During its

construction of the Beltway in the early 1960s, VDOT's

predecessor, the Virginia Department of Highways, straightened

a curved section of Cameron Run and relocated it roughly 1,150

feet closer to Huntington. 2 The straightening and relocation

reduced Cameron Run to 38% of its natural width.

1
The highest flow was created by Hurricane Agnes in 1972.
2
From the time of the Beltway's construction until the
June 2006 flood, VDOT owned the land on which Cameron Run was
relocated. The Huntington homes were built several years
before the relocation of Cameron Run and construction of the
Beltway.
2
 VDOT built the Beltway to the immediate north of the

relocated Cameron Run. To create a base for the Beltway in

what had been a marsh and wetlands, VDOT removed the natural

"sponge" for floodwater by adding solid fill and draining the

remaining water with vertical "sand wicks." The presence of

the Beltway on the northern edge of the relocated Cameron Run

also created a berm, which forced water south during flooding

and "eliminat[ed] the conveyance potential beyond the north

bank of the stream."

The Plaintiffs allege that their homes would not have

flooded in 2006 had VDOT not, in the early 1960s, relocated

Cameron Run, filled in portions of the watershed marshes to

construct the Beltway, narrowed the channel's natural width,

and built the Beltway in such a way as to serve as a concrete

wall blocking any northern flow of water from the channel.

The Plaintiffs further allege that the flood damage was

"amplified" by the County's and VDOT's acts or omissions after

the relocation of Cameron Run and construction of the Beltway.

They allege that most of their homes would not have flooded at

all, and those few that did would have suffered only minor

damage, if the elevation of the June 2006 flood had not been

significantly raised by the accumulation of sediment in the

relocated Cameron Run due to the County's and VDOT's failure to

dredge or otherwise maintain the channel, VDOT's construction

3
of the U.S. Route 1 Interchange in the Cameron Run Watershed,

and the encroachment on the Cameron Run flood plain caused by

commercial and other development approved by the County.

According to a 2007 report prepared by the Army Corps of

Engineers, 5 to 6 feet of sediment accumulated in the relocated

Cameron Run between 1965 and 1999. This sedimentation

contributed to the severity of the June 2006 flood, decreasing

the capacity of the channel to transport water to the Potomac

River and away from Huntington. The Corps report concluded

that without such sedimentation, flood elevations in Huntington

would have been 1.2 to 2 feet lower. The County and VDOT were

aware, by way of multiple reports and memoranda, of the

sedimentation and the increased risk of flooding it posed, but

did not undertake any dredging or maintenance of the relocated

Cameron Run. As early as 1966, the County adopted an ordinance

for a regulated 100-year floodplain for the channel. In 1970,

VDOT's resident engineer circulated a memorandum in which he

acknowledged the danger of sedimentation in the relocated

Cameron Run but disavowed VDOT's responsibility for dredging

it. In the wake of the June 2006 flood, VDOT continued to

insist that it had no duty to maintain the channel. Rather,

VDOT asserted, "each locality is responsible for the

maintenance of the natural and relocated Cameron Run Channel

4
within its jurisdictional limits, despite the fact that the

subject reach of Cameron Run is within VDOT's [r]ight-of-way."

The Corps report also found that the construction of the

Route 1 Interchange, part of the Woodrow Wilson Bridge

construction project, contributed up to 1 foot to the water

level during the June 2006 flood and that commercial

development within the Cameron Run floodplain contributed

another 2.5 to 5 inches. Such development included the

Huntington Metro Rail and Station, completed in 1983, and Jones

Point, a 100-acre development located adjacent to Cameron Run

containing residential apartment towers and several commercial

buildings. A metal retaining wall was constructed along

Cameron Run for Jones Point, with a large amount of fill

brought in to elevate that development out of the floodplain.

B.

To recover for the damage to their homes and personal

property resulting from the June 2006 flood, the Plaintiffs

sued the County and VDOT. In their second amended complaint,

the Plaintiffs allege that the County and VDOT damaged their

homes and personal property for public use without just

compensation, in violation of Article I, Section 11 of the

Constitution of Virginia. That section, in relevant part,

guarantees "that the General Assembly shall not pass any law

. . . whereby private property shall be taken or damaged for

5
public uses, without just compensation." Va. Const. Art. I,

§ 11.

Both the County and VDOT demurred. VDOT's demurrer

presented several grounds for dismissal: that the Plaintiffs

lacked standing because they did not own or rent their homes

when VDOT relocated Cameron Run and built the Beltway; 3 that the

Plaintiffs failed to identify or allege a specific appurtenant

right connected to their homes that VDOT damaged when it

constructed the Beltway; that VDOT was not responsible for

commercial development in the Cameron Run Watershed, including

the construction of the Huntington Metro and Jones Point; that

the Plaintiffs' homes were not damaged for public use; and that

the Plaintiffs could not recover for damage to their personal

property.

The circuit court sustained the County's and VDOT's

demurrers. In its letter opinion, the circuit court framed the

question presented — which it considered to be one of first

impression — as follows: "[D]oes a single occurrence of

temporary flooding state a cause of action for inverse

condemnation?" To answer this question, the circuit court

analyzed several of our cases involving multiple occurrences of

3
VDOT also raised this issue as a plea in bar of the
statute of limitations, which was pending when the circuit
court sustained the demurrers; hence it is not a part of this
appeal.
6
flooding as well as several federal cases construing the

Takings Clause of the Federal Constitution in a flooding

context. It reasoned that

the distinction between taking and damaging is [not]
dispositive. As I understand the law, the
distinction that is dispositive is the episodic
nature of the event — not the legal terminology that
describes the result of the event. An allegation of
a one[-]time event that results in a taking is no
more compensable than a one[-]time event that results
only in damage.

Concluding that the June 2006 flood was "an extraordinary

event," the circuit court went on to hold that "a one[-]time

episode of flooding does not state a cause of action for

inverse condemnation" under Article I, Section 11. 4 It

accordingly dismissed the Plaintiffs' second amended complaint

with prejudice.

C.

We granted the Plaintiffs' petition for appeal as to VDOT

but not as to the County. The Plaintiffs assign error as

follows:

The trial court erred in sustaining [VDOT's]
demurrer[] when it concluded that a single occurrence
of flooding cannot state a cause of action for
damaging under Article I, [Section] 11 of the
Constitution of Virginia.

(Internal quotation marks omitted.)

4
The circuit court also sustained the County's demurrer on
the ground that the County "did nothing more than acquiesce in
the construction of the Beltway." The Plaintiffs did not
challenge this ruling.
7
 We also granted VDOT's assignments of cross-error, which

state:

1. The trial court erred in not sustaining VDOT's
Demurrer on the alternative grounds that [the
Plaintiffs] lacked standing to seek compensation
under Article I, Section 11 of the Virginia
Constitution because they did not own or rent the
subject properties when the Beltway was
constructed.

2. The trial court erred in not sustaining VDOT's
Demurrer on the alternative grounds that [VDOT]
was not responsible for the dramatic urbanization
of the Cameron Run Watershed after the Beltway was
completed more than 50 years ago.

3. The trial court erred in not sustaining VDOT's
Demurrer on the alternative grounds [that the
Plaintiffs] did not allege that their property was
damaged "for a public use."

4. The trial court erred in not sustaining VDOT's
Demurrer on the alternative grounds that [the
Plaintiffs] cannot recover for damages to personal
property, business losses or repair costs in an
inverse condemnation action.

(Some internal quotation marks omitted.)

II.

We review de novo the circuit court's sustaining of VDOT's

demurrer. Lee v. City of Norfolk, 281 Va. 423, 432, 706 S.E.2d

330, 334 (2011). In conducting our review, we accept as true

the facts alleged in the Plaintiffs' second amended complaint

and give the Plaintiffs the benefit of all reasonable

inferences that may be drawn from those facts. Station #2, 280

Va. at 169, 695 S.E.2d at 539. This is because "[a] demurrer

8
tests the legal sufficiency of facts alleged in pleadings, not

the strength of proof." Lee, 281 Va. at 432, 706 S.E.2d at 334

(quoting Augusta Mutual Insurance Co. v. Mason, 274 Va. 199,

204, 645 S.E.2d 290, 293 (2007)). "To survive a challenge by

demurrer, a pleading must be made with 'sufficient definiteness

to enable the court to find the existence of a legal basis for

its judgment.' " Hubbard v. Dresser, Inc., 271 Va. 117, 122,

624 S.E.2d 1, 4 (2006) (quoting Moore v. Jefferson Hospital,

Inc., 208 Va. 438, 440, 158 S.E.2d 124, 126 (1967)).

III.

A.

Article I, Section 11 of the Constitution of Virginia

confers upon a property owner a right to just compensation if

the government takes or damages his property for public use. A

property owner may enforce this constitutional right through an

inverse condemnation suit. Kitchen v. City of Newport News,

275 Va. 378, 386, 657 S.E.2d 132, 136 (2008). For the

government to take or damage property within the meaning of

Article I, Section 11, it need not "actually invade or disturb

the property"; rather, it need only "adversely affect[] the

[property owner's] ability to exercise a right connected to the

property." Id. (quoting Richmeade, L.P. v. City of Richmond,

267 Va. 598, 602, 594 S.E.2d 606, 609 (2004)). A suit for

inverse condemnation, then, "is an action seeking redress for

9
the government's action in limiting property rights the

[property owner] holds." Id. at 386, 657 S.E.2d at 136-37

(quoting Richmeade, 267 Va. at 603, 594 S.E.2d at 609).

B.

The Plaintiffs assert that the circuit court erred by

holding that a single occurrence of flooding cannot support an

inverse condemnation claim. They contend that a taking and a

damaging are distinct concepts under Article I, Section 11; and

that, accordingly, "[p]roperty can be taken without being

damaged, and property can be damaged without being taken." So,

they argue, "while the injury caused by a one-time event is not

compensable as a taking, it is compensable as a damaging."

VDOT does not dispute that a single occurrence of flooding

could give rise to a compensable damaging under Article I,

Section 11, but it has a different view of the circuit court's

holding. According to VDOT, the circuit court did not hold

that a single occurrence of flooding could never support an

inverse condemnation claim; instead, it held that the June 2006

flood could not support the Plaintiffs' inverse condemnation

claim because it was "an extraordinary event."

In support of its reading of the circuit court's holding,

VDOT points to the court's reliance on our decision in American

Locomotive Company v. Hoffman, 105 Va. 343, 54 S.E. 25 (1906).

There we considered whether a railroad was liable for damages

10
to a property owner for building two culverts that were

allegedly inadequate to "carry off" the water from a nearby

stream. Id. at 344-45, 54 S.E.2d at 25-26. The property owner

claimed that the improper design and construction of the

culverts led to multiple "overflows" onto his property. Id.

In addressing the rights and obligations of riparian owners, we

said:

Where bridges, culverts, etc., are constructed across
water courses by railroad companies, municipalities,
or other corporations, or by individuals, due care
must be taken not to obstruct the natural flow,
including that at seasons of either low or usual high
water, and the failure to do so will render the
offender liable for injuries to landowners caused by
the penning back of the waters and the overflow of
their lands; but such structures need not be
constructed in such a manner as to permit the
unobstructed flow of the water course in times of
unprecedented and extraordinary freshets.

Id. at 350, 54 S.E.2d at 27 (emphasis added) (internal

quotation marks and citation omitted). The circuit court

quoted this language in its letter opinion just before

announcing its holding.

To the extent that the circuit court held that a single

occurrence of flooding cannot support an inverse condemnation

claim, it erred. We find nothing in Article I, Section 11's

text or history that limits a property owner's right to just

compensation for a damaging to only multiple occurrences of

flooding. Further, our case law holds that a single occurrence

11
of flooding can support an inverse condemnation claim. In

Hampton Roads Sanitation District v. McDonnell, 234 Va. 235,

360 S.E.2d 841 (1987), we said that a property owner could

bring a new inverse condemnation suit against the City of

Hampton Roads each time it discharged sewage onto his property.

Id. at 239, 360 S.E.2d at 844. We explained: "[T]he original

discharge of sewage in 1969 did not produce all the damage to

the property. The discharges were not continuous; instead,

they occurred only at intervals. Thus, each discharge

inflicted a new injury for which [the property owner] had a

separate cause of action." Id. (emphasis added).

The circuit court also erred insofar as it held that the

June 2006 flood could not support the Plaintiffs' inverse

condemnation claim because it was "an extraordinary event." We

have said that "[w]hether an extraordinary flood is an 'act of

God' is a mixed question of law and fact" and that the

defendant bears the burden of "prov[ing] the existence of

circumstances permitting exemption from liability." Cooper v.

Horn, 248 Va. 417, 425, 448 S.E.2d 403, 407 (1994). But we

have never addressed whether damages caused by an act of God

are compensable under Article I, Section 11. Other States with

similar constitutional provisions have held that such damages

do not give rise to an inverse condemnation claim. See, e.g.,

Schrader v. State, 213 N.W.2d 539, 543-44 (Iowa 1973) (holding

12
that a public body that constructs an improvement need not

condemn for the possibility of an act of God); Aasamundstad v.

State, 763 N.W.2d 748, 758 (N.D. 2008) (noting that North

Dakota recognizes "an act-of-God defense" to a claim for the

taking or damaging of private property). But we need not — and

do not — decide that question today, for the June 2006 flood

was not an act of God under the facts alleged by the

Plaintiffs. 5

An "act of God" is defined in our precedents as "[a]ny

accident due to natural causes directly and exclusively without

human intervention, such as could not have been prevented by

any amount of foresight and pains, and care reasonably to have

been expected." City of Portsmouth v. Culpepper, 192 Va. 362,

367, 64 S.E.2d 799, 801 (1951) (internal quotation marks and

citation omitted). "To relieve one of liability because a

flood is, in law, an 'an act of God,' it must appear that the

act of God was the sole proximate cause of the injury."

Cooper, 248 Va. at 425, 448 S.E.2d at 408 (some internal

quotation marks and citation omitted). And "[i]t has been held

in Virginia since 1849 that all human agency is to be excluded

from creating or entering into the cause of mischief, in order

that it may be deemed an Act of God." Culpepper, 192 Va. at

5
VDOT is, of course, free to prove otherwise should the
case proceed to trial.
13
367, 64 S.E.2d at 801 (internal quotation marks and citation

omitted).

The storm that led to the June 2006 flood was no doubt

severe, but it was not unprecedented — Hurricane Agnes in 1972

produced a greater water flow in the relocated Cameron Run.

That the channel would at times be subjected to heavy water

flows, then, was not unforeseeable. More importantly, however,

the Plaintiffs allege that the June 2006 flood was the result

not of natural causes but of human agency: Had VDOT not

allowed several feet of sediment to accumulate in the relocated

Cameron Run, they claim, "the vast majority of [their] homes

would not have been flooded at all, and those few that did

would have suffered only minor flooding." The Plaintiffs

allege, moreover, that VDOT's resident engineer recognized as

early as 1970 that sediment accumulating in the channel could

lead to flooding but denied VDOT's responsibility for dredging

it.

In sum, no matter which way the circuit court's holding is

read, it was in error. Our review, however, is not at an end,

for VDOT urges us to affirm the circuit court's judgment on one

or more alternative grounds. See Shilling v. Baker, 279 Va.

720, 728, 691 S.E.2d 806, 811 (2010). We address those grounds

below and find that none demands affirmance of the circuit

court's dismissal of the Plaintiffs' second amended complaint.

14
 IV.

A.

We begin with VDOT's claim that the Plaintiffs lack

standing to maintain this inverse condemnation suit. VDOT

argues that the Plaintiffs do not have standing to seek relief

under Article I, Section 11 of the Constitution of Virginia for

damages caused by the relocation of Cameron Run and

construction of the Beltway, because they did not buy or rent

their homes until many years after those public improvements

were completed. The Plaintiffs, however, do not allege that

their homes and personal property were damaged by VDOT's

relocation of Cameron Run and construction of the Beltway.

Rather, they allege that their homes and personal property were

damaged by VDOT's operation of — and, in particular, its

failure to maintain — the channel in the years following its

relocation. 6 The Plaintiffs claim that, had VDOT not allowed

several feet of sediment to accumulate in the relocated Cameron

6
At oral argument, counsel for the Plaintiffs clarified
that their inverse condemnation claim arises solely from VDOT's
failure to maintain the relocated Cameron Run:

We believe as we understand it that Cameron Run, the
new channel, the concrete channel, as it was designed,
very well may have completely mitigated the 2006 flood
if it had been maintained. So it is the operation of
this public use, not the construction of it, though
obviously if it hadn't been constructed, it would
never have been operated.

(Emphasis added).
15
Run, "the vast majority of [their] homes would not have been

flooded at all, and those few that did would have suffered only

minor flooding." Hence we confine our analysis to whether the

Plaintiffs have standing under Article I, Section 11 to seek

relief for damages resulting from VDOT's operation of, and

failure to maintain, the channel.

In general terms, we have explained the concept of

standing as follows:

A party has standing if it can show an immediate,
pecuniary, and substantial interest in the litigation,
and not a remote or indirect interest. The concept of
standing concerns itself with the characteristics of
the person or entity who files suit. The point of
standing is to ensure that the person who asserts a
position has a substantial legal right to do so and
that his rights will be affected by the disposition of
the case. In asking whether a person has standing, we
ask, in essence, whether he has a sufficient interest
in the subject matter of the case so that the parties
will be actual adversaries and the issues will be
fully and faithfully developed.

Westlake Props. v. Westlake Pointe Prop. Owners Ass'n, 273 Va.

107, 120, 639 S.E.2d 257, 265 (2007) (internal quotation marks

and citations omitted).

When the Plaintiffs bought or rented their homes, they

acquired a bundle of rights, including the rights to possession

and enjoyment. See City of Virginia Beach v. Bell, 255 Va.

395, 400, 498 S.E.2d 414, 417 (1998). And those rights were

undoubtedly impaired when the June 2006 flood filled their

homes with sewage-laced water. Since an inverse condemnation

16
claim arises when "the government's action . . . limit[s]

property rights the [property owner] holds" at the time of the

action, we conclude that the Plaintiffs have standing under

Article I, Section 11 to seek relief for damages caused by

VDOT's operation of, and failure to maintain, the relocated

Cameron Run. Kitchen, 275 Va. at 386, 657 S.E.2d at 136-37

(quoting Richmeade, 267 Va. at 603, 594 S.E.2d at 609); see

also Swift & Co. v. City of Newport News, 105 Va. 108, 120, 52

S.E. 821, 825 (1906) ("It is the direct disturbance of a right

which the owner had enjoyed in connection with his property

that gives the right of action." (internal quotation marks and

citation omitted)).

B.

We now turn to VDOT's argument that the Plaintiffs'

inverse condemnation claim must be dismissed because the

Plaintiffs fail to identify or allege a specific appurtenant

right connected to their homes that VDOT damaged when it

constructed the Beltway. According to VDOT, the word "damaged"

in Article I, Section 11 does not encompass physical damage to

tangible property, but only damage to intangible property

rights. Relying on our decisions in Board of Supervisors of

Prince William County v. Omni Homes, Inc., 253 Va. 59, 481

S.E.2d 460 (1997), and Richmeade, VDOT contends that property

is damaged in the constitutional sense only when "an

17
appurtenant right connected with the property is directly and

specially affected by a public use and that use inflicts a

direct and special injury on the property which diminishes its

value." Omni Homes, 253 Va. at 72, 481 S.E.2d at 467.

We reject VDOT's limited view of the word "damaged" in

Article I, Section 11. Our recognition in Omni Homes and

Richmeade of the constitutional right to recover for damage to

an appurtenant right to property does not exclude the right to

recover for physical damage to property itself. City of

Lynchburg v. Peters, 156 Va. 40, 49, 157 S.E.2d 769, 772 (1931)

(noting that the word "damaged" was added to Article I, Section

11's predecessor to cover "cases where the corpus of the

owner's property itself, or some appurtenant right or easement

connected therewith, or by the law annexed thereto, is directly

(that is, in general if not always, physically) affected, and

is also specially affected (that is, in a manner not common to

the property owner and to the public at large)" (citation

omitted)); Lambert v. City of Norfolk, 108 Va. 259, 265, 61

S.E. 776, 778 (1908) ("The meaning of the word 'damaged' was

neither enlarged nor restricted by the Constitution. It must,

therefore, have been used in the same sense and with the same

meaning that it had at common law — not damage to the feelings,

tastes or sentiments, but physical damage to the corpus or to

some right of property appurtenant thereto."). We have

18
therefore allowed recovery in cases in which only physical

damage to property itself was alleged. E.g., Jenkins v. County

of Shenandoah, 246 Va. 467, 469-70, 436 S.E.2d 607, 608-09

(1993) (water discharge from drainage easement); McDonnell, 234

Va. at 238-39, 360 S.E.2d at 843 (sewage discharge); Burns v.

Board of Supervisors of Fairfax County, 218 Va. 625, 626, 238

S.E.2d 823, 824 (1977) (water discharge from sewer); Morris v.

Elizabeth River Tunnel Dist., 203 Va. 196, 197, 123 S.E.2d 398,

399 (1962) (water damage); Heldt v. Elizabeth River Tunnel

Dist., 196 Va. 477, 478, 84 S.E.2d 511, 513 (1954) (same).

Neither Omni Homes nor Richmeade alters this well-

established precedent. In Omni Homes, the property owner

complained of interference with an alleged appurtenant right to

property, not physical damage to property itself. 253 Va. at

63-65, 481 S.E.2d at 461-62. In particular, the property owner

alleged that Prince William County's purchase of adjoining land

affected the property owner's ability to secure higher zoning

classification for planned development. Id. In that context,

we observed that "Virginia law holds partial diminution in the

value of property compensable only if it results from

dislocation of a specific right contained in the property

owner's bundle of property rights." Id. at 72, 481 S.E.2d at

467 (citing Lambert, 108 Va. at 268, 61 S.E. at 778-79).

19
 Similarly, in Richmeade, the property owner claimed that

the City of Richmond denied a request to vacate streets,

thereby hindering the property owner's ability to develop two

parcels as a single development. 267 Va. at 600, 594 S.E.2d at

607. Relying on Omni Homes, we explained that "[t]o take or

damage property in the constitutional sense does not require

that the sovereign actually invade or disturb the property.

Taking or damaging property in the constitutional sense means

that the governmental action adversely affects the landowner's

ability to exercise a right connected to the property." Id. at

602, 594 S.E.2d at 609 (citing Omni Homes, 253 Va. at 72, 481

S.E.2d at 467). When such a right connected to the property is

adversely affected by governmental action, we continued, "the

measurement of that compensation may be based on a decline in

the value of the subject property." Id. at 603, 594 S.E.2d at

609.

In both Omni Homes and Richmeade, it is clear that we

addressed only whether an alleged appurtenant right to property

had been damaged within the meaning of Article I, Section 11.

And in doing so, we did not contemplate recovery for physical

damage to property itself or limit a property owner's

longstanding right to recover for such damage in an inverse

condemnation suit.

20
 C.

VDOT also contends that the Plaintiffs' inverse

condemnation claim must be dismissed because VDOT was not

responsible for the dramatic urbanization of the Cameron Run

Watershed that occurred after the Beltway was completed or the

construction of the Huntington Metro and Jones Point. We agree

with VDOT that it cannot be held liable for the damage to the

Plaintiffs' homes caused by these later developments; its

liability is limited to the damage caused by its operation of

(including its failure to maintain) the relocated Cameron Run.

But it is for a jury — not us — to determine the cause of the

damage to the Plaintiffs' homes. Heldt, 196 Va. at 483-84, 84

S.E.2d at 515 (concluding that it was for the jury to determine

from the evidence whether flood damage to the plaintiff's

buildings was attributable to the defendant's "construction of

the tunnel [or] to other causes," such as the plaintiff's

failure to install "gutters and downspouts [on the buildings]

as required by the city ordinance").

D.

VDOT further argues that the Plaintiffs' inverse

condemnation claim must be dismissed because they do not allege

that their homes were damaged for public use. According to

VDOT, the government's obligation under Article I, Section 11

to pay just compensation for a damaging is only triggered when

21
the government "engage[s] in an affirmative and purposeful act

that devotes private property or a related property right[] to

public use." The Plaintiffs, VDOT argues, "d[o] not allege

that [it] relocated Cameron Run onto [their] properties or

[that it] intentionally pumped water on their properties."

"Rather," VDOT maintains, "all that [the Plaintiffs] allege[]

is that the June 2006 Flood was caused by the public use of the

Beltway, and that VDOT should be required to pay just

compensation because the public benefits from the Beltway."

We reject VDOT's narrow reading of Article I, Section 11.

There is nothing in that section's text or history that limits

the government's constitutional obligation to pay just

compensation to only damages caused by its "affirmative and

purposeful" acts. Moreover, we have recognized that the

government's failure to act can give rise to a compensable

damaging under Article I, Section 11. Jenkins, 246 Va. at 471,

436 S.E.2d at 610.

In Jenkins, the owners of two residential subdivision lots

filed an inverse condemnation suit against Shenandoah County

and others, alleging that their lots had been damaged by

spillover from a stormwater drainage channel. Id. at 468-69,

436 S.E.2d at 608-09. The owners claimed that the subject

drainage easement constituted a public use and presented

evidence at trial that Shenandoah County's drainage channel was

22
part of a water discharge system that served to divert water

onto their lots. Id. at 470, 436 S.E.2d at 609. They also

presented evidence that the spillover occurred because the

drainage channel was not constructed in accordance with the

original subdivision plans that had been submitted to

Shenandoah County for approval and that had been approved by

VDOT. Id. at 469, 436 S.E.2d at 609. Shenandoah County argued

that, although it owned the drainage easement, it had no duty

to maintain the easement and that the owners' suit was barred

by the doctrine of sovereign immunity. Id. at 468, 436 S.E.2d

at 608. The circuit court agreed and ruled that Shenandoah

County was shielded by sovereign immunity. Id. The owners'

suit was therefore dismissed. Id.

We reversed. First, we held that Shenandoah County was

not entitled to sovereign immunity because an action brought

under Article I, Section 11 is not a tort but a contract

action, and thus not barred by sovereign immunity. Id. at 470,

436 S.E.2d at 609. Then we considered whether the owners had

made out a prima facie claim for a damaging. Id. Shenandoah

County argued that they had not because it "took no steps with

respect to the maintenance, construction or supervision or

operation of the drainage easements." Id. We disagreed,

holding that Shenandoah County's drainage easement was a public

use under our precedents and that the County's failure to

23
maintain it did not "absolve the County of liability" under

Article I, Section 11. Id. at 470-71, 436 S.E.2d at 609-10.

When Shenandoah County "accepted the dedication of the

easement," we explained, "the County also accepted the burden

of maintaining it in the manner necessary to protect the

servient estates." Id. at 471, 436 S.E.2d at 610.

Pursuant to our decision in Jenkins, then, the government

cannot evade liability for a damaging under Article I, Section

11 by simply choosing not to act when it has a duty to do so.

Accordingly, the Plaintiffs' inverse condemnation claim against

VDOT does not fail just because it arises from VDOT's

subsequent operation of, and failure to maintain, the relocated

Cameron Run, rather than from VDOT's relocation of the channel

and construction of the Beltway.

We further reject VDOT's contention that the Plaintiffs'

inverse condemnation claim must be dismissed because, in its

view, the relocated Cameron Run is not a public use. According

to VDOT, the Beltway is the public use, not the channel. Such

a narrow view of the Beltway vis-á-vis the relocated Cameron

Run, in our opinion, ignores the relationship of the two public

improvements and their respective functions. The channel is

necessary to the continued operation of the roadway. Without

the relocated Cameron Run to drain water from nearby urbanized

lands, the Beltway would undoubtedly be even more susceptible

24
to flooding and, consequently, more frequent closures. That

VDOT refused to maintain the relocated Cameron Run and instead

chose to "tolerat[e] temporary inundation" of the Beltway does

not diminish the importance of the channel to the continued

operation of the roadway.

Despite the concerns raised by local officials about the

accumulation of sediment in the relocated Cameron Run and the

resulting increase in the risk of flooding to neighboring

residential developments such as Huntington, VDOT declined to

maintain the channel. VDOT made this decision (at least in

part) because it was willing to accept temporary flooding of

the Beltway. In essence, then, VDOT elected to use the Beltway

and nearby residential developments as makeshift storage sites

for excess stormwater instead of allocating its resources to

maintain the relocated Cameron Run.

So viewed, VDOT's choice not to maintain the relocated

Cameron Run is no different from Hampton Roads' decision in

McDonnell, 234 Va. at 238-39, 360 S.E.2d at 843, to use private

property as a storage site for excess discharge from its sewage

system or the Tunnel District's decision in Heldt, 196 Va. at

480, 84 S.E.2d at 513-14, to allow water pumped from a

construction site to flow unabated onto private property. Like

Hampton Roads and the Tunnel District, VDOT has asked private

property owners (the Plaintiffs) to bear the cost of a public

25
improvement (the Beltway). This is the type of mischief that

Article I, Section 11 was adopted more than 100 years ago to

remedy. See 1 Report of the Proceedings and Debates of the

Constitutional Convention 699 (J.H. Lindsay ed., Hermitage

Press, Inc. 1906) ("[I]t is the inherent right and justice of

the contention that the rights of the private individual . . .

ought not to be sacrificed to the public welfare, and that it

is the function of bodies of this sort, in the public interest,

to impose such restrictions upon legislative power that will

insure the rights of the private citizen."). Cf. City Council

of Montgomery v. Maddox, 7 So. 433, 436 (Ala. 1889) (noting

that the "injured" clause in the Alabama Constitution was

adopted "to require the public to bear the burden of municipal

improvements of this nature made for the public benefit, and

not to crush the private citizen by imposing upon him alone the

entire damage which may have been caused to his property").

We thus conclude that the Plaintiffs have sufficiently

alleged that their homes were damaged for public use under

Article I, Section 11 to withstand demurrer.

E.

Finally, VDOT contends that at the very least the

Plaintiffs' inverse condemnation claim as to their personal

property must be dismissed. While VDOT acknowledges that "the

sovereign prerogative of eminent domain extends to personal

26
property," it contends that "the General Assembly has not

extended that power to the [Transportation] Commissioner." As

a result, VDOT submits, the Plaintiffs cannot recover under

Article I, Section 11 for damage to their personal property. 7

To make this argument, VDOT relies solely on Burns, in

which we explained that "[t]he owner whose property is taken or

damaged for public use has a right to waive all other remedies

and to sue upon an implied contract that he will be paid

therefor such amount as would have been awarded if the property

had been condemned under the eminent domain statute." 218 Va.

at 627, 238 S.E.2d at 825. The General Assembly, as VDOT

points out, has only authorized the Commissioner to acquire

"lands, structures . . . and . . . interest[s] in lands that

are necessary to construct, maintain, or repair the public

highways." Code § 33.1-89(A).

We reject VDOT's contention. First, Burns cannot bear the

weight that VDOT ascribes to it. There the property owners did

not seek relief for damage to personal property, so we said

nothing on the issue. That case, moreover, did not involve a

7
VDOT also asserts that the Plaintiffs cannot recover for
business losses or repair costs. Plaintiffs, however, make no
claim for business losses. As for repair costs, the Plaintiffs
do allege that they "paid tens of thousands of dollars for the
costs of restoring their homes," but they do not appear to be
seeking recovery for those costs. Instead, they appear to be
seeking recovery only for the "substantial diminished value" of
their homes and the "loss of [their] personal property."
27
sudden flood of the magnitude of the one that gave rise to this

inverse condemnation suit.

Second, in City of Richmond v. Williams, 114 Va. 698, 77

S.E. 492 (1913), we held that a statute "in obedience to"

Article I, Section 11's predecessor required compensation for

the costs of moving lumber piled upon the property as a result

of a partial condemnation. Id. at 701-03, 77 S.E. at 493-94.

"[J]ust compensation," we said, "must be awarded for the land

or other property taken, and damages must be awarded resulting

to adjacent or other property of the owner, or to the property

of any other person." Id. at 702-03, 77 S.E. at 494. And more

recently, in Potomac Electric Power Co. v. Fugate, 211 Va. 745,

180 S.E.2d 657 (1971), we observed that, under Williams,

"compensation for the costs of relocating the personal property

was constitutionally required" where "personal property [was]

damaged or required to be removed by public undertaking." Id.

at 750, 180 S.E.2d at 660.

In accordance with Williams and Potomac Electric Power, we

conclude that the Plaintiffs have sufficiently alleged an

inverse condemnation claim under Article I, Section 11 for

damage to their personal property to survive demurrer. We

stress, however, that the Plaintiffs can only recover for

damage to personal property that was appurtenant to their

28
homes; for Article I, Section 11's primary focus is the taking

and damaging of real property.

V.

When the government constructs a public improvement, it

does not thereby become an insurer in perpetuity against flood

damage to neighboring property. And nothing in today's opinion

should be read as imposing such an obligation on VDOT. But

under our precedents, a property owner may be entitled to

compensation under Article I, Section 11 of the Constitution of

Virginia if the government's operation of a public improvement

damages his property.

Because the facts alleged in the Plaintiffs' second

amended complaint, if taken as true, establish that their homes

and personal property were damaged by VDOT's operation of, and

failure to maintain, the relocated Cameron Run, we conclude

that the circuit court erred in dismissing their inverse

condemnation suit on VDOT's demurrer. We thus reverse the

circuit court's judgment and remand the case for further

proceedings consistent with this opinion.

Reversed and remanded.

JUSTICE McCLANAHAN, with whom JUSTICE GOODWYN joins, dissenting.

Today the Court sanctions what can only be deemed a

"constitutional tort," based on a theory of causation, not the

29
principles of condemnation. Noticeably absent from the

allegations in this case is a contention, or even facts

purporting to show, that VDOT exercised its power of eminent

domain in damaging Plaintiffs' properties. This deficiency is

fatal to the Plaintiffs' claim since there is no cause of

action for inverse condemnation without the exercise of such

power.

When a property owner brings an action under Article I,

Section 11 of the Constitution of Virginia, for the damaging of

his property for a public use, he is entitled to be paid "such

amount as would have been awarded if the property had been

condemned under the eminent domain statute." Burns v. Board of

Supervisors, 218 Va. 625, 627, 238 S.E.2d 823, 825 (1977).

"The power of eminent domain is vested in the Commissioner [of

Highways] by Code § 33.1-89." Trout v. Commonwealth

Transportation Commissioner, 241 Va. 69, 72, 400 S.E.2d 172,

173 (1991). Pursuant to that section, the Commissioner is

granted authority to acquire by "power of eminent domain such

lands, structures, rights-of-way, franchises, easements and

other interests in lands . . . deemed to be necessary for the

construction, reconstruction, alteration, maintenance and

repair of the public highways of the Commonwealth." Code

§ 33.1-89(A). "[F]or these purposes and all other purposes

incidental thereto," the Commissioner "may condemn property

30
. . . deemed useful or necessary in carrying out the purposes

aforesaid." Id. "It is elementary, however, that the

Commissioner can condemn property only for a public purpose,"

and thus, is not empowered to condemn property otherwise.

Stewart v. Fugate, 212 Va. 689, 691, 187 S.E.2d 156, 159

(1972). Accordingly, under Article I, Section 11 of the

Constitution, a private property owner is entitled to "just

compensation" when the Commissioner of Highways takes or

damages property "for public uses" in the lawful exercise of

its power of eminent domain as defined by Code § 33.1-89.

Plaintiffs do not allege that VDOT damaged their

properties in the exercise of its power of eminent domain

because they do not allege that the use of their properties was

"necessary for the construction, reconstruction, alteration,

maintenance [or] repair of the public highways of the

Commonwealth" or for "purposes incidental thereto." Code

§ 33.1-89(A). Rather, Plaintiffs allege that their properties

sustained flood damage caused by VDOT's failure to dredge or

otherwise maintain Cameron Run. The only highway at issue is

the Capital Beltway, and Plaintiffs do not contend the damaging

of their properties was necessary, or even useful, for the

maintenance of the Beltway. 1

1
Indeed, VDOT could not have successfully petitioned for
condemnation of plaintiffs' properties seeking to have just
31
 Not only is Plaintiffs' claim insufficient for failure to

allege that their properties were damaged through VDOT's

exercise of its power of eminent domain under Code § 33.1-89,

Plaintiffs fail to allege that their properties were damaged

for public uses. 2 Under Article I, Section 11, "just

compensation determined on the grounds that the flooding of
Plaintiffs' properties was necessary or useful for the
maintenance of the Beltway. Yet, this is the effect of the
majority's ruling. If Plaintiffs have a viable cause of action
for inverse condemnation against VDOT, then VDOT arguably has a
viable cause of action for condemnation of Plaintiffs'
properties despite the fact that the damage to their properties
is not alleged to have been necessary for the maintenance of
the Beltway. This fundamental point was stated well by the
Supreme Court of Oregon in rejecting a similar attempt to
characterize unnecessary damage as an inverse condemnation
claim:

Had the defendant district instituted
condemnation proceedings for the appropriation of
plaintiffs' lands and in such proceedings alleged
that said lands were necessary for public use for the
reason that the district expected in the future to
fail to maintain its ditches properly and expected to
allow them to become clogged with vegetation, we
surmise that no court would have entertained its
petition. In other words, the right of eminent
domain cannot be exercised to permit unnecessary
damage and waste.

Patterson v. Horsefly Irr. Dist., 69 P.2d 282, 289 (Ore. 1937).
2
The majority reasons that the relationship between the
Capital Beltway, designated by the Plaintiffs as the "public
use," and Cameron Run is such that maintenance of Cameron Run
was necessary to the continued operation of the Beltway. This
rationale misses the point, which is that the damaging of the
Plaintiffs' properties must be necessary or useful for the
maintenance of the Beltway. In any event, Article I, Section
11 does not impose upon VDOT the duty to act to prevent damage.
Such a duty, if it exists, must exist under tort law.
32
compensation" is guaranteed when private property is "damaged

for public uses." (Emphasis added.) It does not provide that

just compensation is guaranteed when damage to private property

can be causally traced to a public improvement. Only when

private property is taken or damaged for a public use is the

power of eminent domain exercised. Or, as this Court has

stated, the right of recovery arises from "damage done to

property by an agency clothed with the power of eminent domain

in effecting a public improvement." Heldt v. Elizabeth River

Tunnel Dist., 196 Va. 477, 482, 84 S.E.2d 511, 514 (1954)

(emphasis added). 3

3
The majority compares the "use" of Plaintiffs' properties
to the use of the landowners' property in Jenkins v. County of
Shenandoah, 246 Va. 467, 436 S.E.2d 607 (1993). In Jenkins,
the County was using the landowners' property for a drainage
easement that was alleged to be for the public benefit. Id. at
470-71, 436 S.E.2d at 609-10. Likewise, in Burns, the property
was used for drainage from a storm sewer alleged to be for the
public benefit. 218 Va. at 628-29, 238 S.E.2d at 825-26. See
also Hampton Roads Sanitation District v. McDonnell, 234 Va.
235, 237, 360 S.E.2d 841, 842 (1987) (property used for sewage
discharge from pump station). In each of these cases, the
property owners alleged that their properties were being used
in the operation of the respective public improvements. In
this case, Plaintiffs allege their property was damaged by
VDOT's failure to dredge Cameron Run, not so that the public
could benefit from Cameron Run.
Moreover, while in each of these cases, the public
improvements or facilities were deemed to be public uses, in
none of these cases did the Court address whether the
landowners were damaged for public uses. Nor did these cases
involve the scope of VDOT's power to damage property deemed
necessary for the maintenance of the public highways.
33
 In holding that Plaintiffs have stated a cause of action

for a constitutional damaging, the majority has replaced the

plain language of the Constitution requiring that the claimed

damages be for public uses with a simple causation requirement.

The majority describes the constitutional damaging provision as

entitling a property owner to compensation "if the government's

operation of a public improvement damages his property." Yet,

the Constitution actually states that a property owner is

entitled to compensation if the property is damaged "for" a

public use. The generally accepted definitions of "for"

include "having as [a] goal or object," "in order to be,

become, or serve as," "in order to bring about or further," "to

supply the need of," or "with the purpose or object of."

Webster's Third New International Dictionary 886 (1993). Under

any of these definitions, it is clear that Plaintiffs do not

allege that VDOT flooded their lands "for" a public use. In

other words, Plaintiffs do not claim that VDOT damaged their

lands with the goal of, in order to, or to further the

maintenance of the Beltway. By re-wording the Constitution to

entitle property owners to compensation for damage "caused by"

a public improvement, the majority has eliminated the

requirement that the damages be "for" a public use, thereby

34
altering the purpose and scope of Article I, Section 11, and

enlarging the breadth of the power of eminent domain. 4

Boiled down to its essence, Plaintiffs allege that VDOT

had a duty under the law to dredge or otherwise maintain

Cameron Run, and its failure to do so caused the flood damage

to their properties. This claim is nothing more than a claim

for negligence, brought under the guise of the constitutional

damaging clause. While it is true that a governmental entity,

such as VDOT, may commit acts of negligence in exercising its

power of eminent domain, the acts of negligence alone do not

constitute a constitutional taking or damaging. 5 It is the

4
There is an important distinction between establishing
the cause of the damage, which is a universal requirement for a
plaintiff seeking recovery for damages under any theory, and
establishing the nature and purpose of the act giving rise to
the damage, which determines whether a constitutional damaging
has occurred. Under Article I, Section 11, the act of taking
or damaging a landowner's property must be for a public use.
Under the majority's analysis, however, as long as a
property owner can prove a causal link between a public
improvement and the property damage, there has been a
constitutional damaging, without regard to whether the power of
eminent domain has been exercised. Yet, the exercise of the
power of eminent domain is what distinguishes a claim for
constitutional damaging from other types of damage claims. In
all cases, a plaintiff must prove the defendant caused the
plaintiff's damages. In order to recover for a constitutional
damaging, though, a plaintiff must prove the damage was "for" a
public use.
5
The fact that a landowner may elect to waive his action
in tort and bring suit under the contract implied by the
constitutional damaging provision is beside the point. See
Burns, 218 Va. at 627, 238 S.E.2d at 825. The landowner has no
implied contract claim under the Constitution unless his
35
exercise of the power of eminent domain that gives rise to a

claim of constitutional taking or damaging. In fact, "we have

consistently adhered to the view that the eminent domain

provisions in the Virginia Constitution have no application to

tortious or unlawful conduct." State Highway and Transp.

Comm'r v. Lanier Farm, Inc., 233 Va. 506, 511, 357 S.E.2d 531,

534 (1987); see also Eriksen v. Anderson, 195 Va. 655, 660, 79

S.E.2d 597, 600 (1954) (the Constitution and Code vest the

Commissioner with the power of eminent domain "insofar as may

be necessary" for the construction, maintenance, and repair of

the highways but has no application to unlawful or negligent

acts). By allowing ordinary tort claims, which are subject to

sovereign immunity protections, to proceed as constitutional

damage claims, the actions permissible against the government

now appear limitless.

I would hold that Plaintiffs have not alleged sufficient

facts to state a claim for constitutional damaging under

Article I, Section 11.

property is damaged through the exercise of the power of
eminent domain, i.e., for a public use.
36