In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3735
BRUCE PETERS,
Plaintiff-Appellant,
v.
VILLAGE OF CLIFTON, an
Illinois Municipal Corporation,
ALEXANDER COX & MCTAGGERT,
INCORPORATED and JOSEPH
MCTAGGERT,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05 C 2242—Michael P. McCuskey, Chief Judge.
____________
ARGUED MAY 1, 2007—DECIDED AUGUST 22, 2007
____________
Before RIPPLE, MANION and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Bruce Peters brought this action
under 42 U.S.C. § 1983 against the Village of Clifton
(“Village”), Alexander, Cox & McTaggert, Inc. (“ACM”)
and Joseph McTaggert. He alleged that the defendants
had trespassed on his property in order to expand the
Village’s sewage discharge system and, in so doing, had
committed an unconstitutional taking of his property in
2 No. 06-3735
violation of the Fifth and Fourteenth Amendments. On the
Village’s Rule 12(b)(1) motion, the district court dismissed
the action. Mr. Peters appealed. We agree that the dis-
trict court properly dismissed the action, and, accordingly,
we affirm the judgment of the district court.
I
BACKGROUND
A. Facts
Mr. Peters owns a parcel of agricultural land just outside
the eastern edge of the village limits of Clifton, Illinois.
ACM owns agricultural property within the village limits
that directly abuts Mr. Peters’ land. Running eastward
along Mr. Peters’ property is a waterway that empties
into a drainage ditch. At some unknown time in the past,
prior to Mr. Peters’ ownership of the property, farm
drainage tile had been buried on Mr. Peters’ land. The tile
was parallel to and beneath the waterway. The Village
had an existing sewage line in the vicinity for some time.
The line ran under ACM’s property.
Mr. Peters claims that, in 2005, the private defendants, at
the instruction of the Village, trespassed onto his land, dug
up the old, non-functioning sewer tile and installed new,
larger tile. This newly-installed tile, Mr. Peters contends,
was then connected to the Village’s existing sewage tile “at
or about the property line” between his land and that
owned by ACM. R.1 at 4. The Village thus created, he
maintains, an “unregulated[,] unlicensed sanitary sewer
system discharging sewage through the farm tile within
[Mr. Peters’] property.” Id. at 3. Mr. Peters believes that
the Village made these improvements in an attempt to
No. 06-3735 3
make the adjacent land within the Village boundaries
suitable for development.
Mr. Peters claims that, to install the new tile, ACM, with
the consent of the Village, came onto his property and used
“various poisons on the nature preserve bordering the
above ground drainage ditch, underneath which is the
[Village’s] illegal sanitary sewage line.” He claims that this
action destroyed trees and destabilized the land. Id. at 4.
Mr. Peters claims that acres of his farmland were ren-
dered unsuitable for agricultural uses because of soil
compaction and drainage of “untreated sewage and
waste materials.” Id. at 5.
B. District Court Proceedings
Mr. Peters filed a complaint in the United States District
Court for the Central District of Illinois. He asserted that
the defendants had committed an unauthorized taking
of his property in violation of the Takings Clause of the
Fifth Amendment of the Constitution as made applicable
to the states through the Fourteenth Amendment. See
Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226,
233, 236-37 (1897). Mr. Peters requested compensatory
damages for the taking and a permanent injunction for-
bidding the Village from discharging any materials
through the drainage tiles on his property.1
The Village moved to dismiss the action under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject matter
1
Mr. Peters claims that, in the acts giving rise to his complaint,
both the Village and the private defendants were acting
under color of state law for purposes of liability under 42 U.S.C.
§ 1983.
4 No. 06-3735
jurisdiction, claiming that the action was not ripe. Specifi-
cally, the Village contended that, before Mr. Peters could
assert a takings claim in federal court, he was required
first to seek compensation through appropriate state
channels. This course was mandated, in the Village’s view,
by the decision of the Supreme Court in Williamson County
Regional Planning Commission v. Hamilton Bank of Johnson
County, 473 U.S. 172 (1985).
In his memorandum opposing the motion to dismiss,
Mr. Peters maintained that the Village was not a home
rule municipality under Illinois law, and, therefore, had
no eminent domain power with respect to his land.
Mr. Peters further asserted that, because of the Village’s
status, he could not institute inverse condemnation pro-
ceedings against it and therefore was exempted from
Williamson County’s exhaustion requirement on futility
grounds.
The district court agreed with the Village that, under
Williamson County, Mr. Peters was obligated to show
either that he had exhausted state remedies or that those
remedies were unavailable to him. The district court
assumed for purposes of its analysis that the Village had
no eminent domain powers under Illinois law. The court
concluded, however, that, if the only remedy the state
provided for a taking was dependent upon a particular
jurisdiction’s home rule status, the lack of an available
remedy in a case such as this one would violate the Tak-
ings Clause of the Illinois Constitution. The district court
held that, absent explicit authority from the Illinois courts
that no state remedy was available for takings effected by
non-home rule jurisdictions, Mr. Peters was required to
seek compensation from the state, whether titled an inverse
No. 06-3735 5
condemnation proceeding or a suit in tort.2 Because
Mr. Peters had not availed himself of state procedures
for obtaining compensation, the court concluded that his
claim for a violation of the Takings Clause of the Fifth
Amendment was not ripe. Accordingly, the district court
dismissed the case for lack of subject matter jurisdiction.3
II
DISCUSSION
We review de novo a district court’s order dismissing a
case for lack of subject matter jurisdiction under Rule
12(b)(1). Small v. Chao, 398 F.3d 894, 897 (7th Cir. 2005). We
must accept all facts stated in the complaint as true and
must draw all reasonable inferences in the light most
favorable to the plaintiff. Tricontinental Indus., Ltd. v.
PricewaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.
2007).
A.
We pause at this point to set forth in some detail Mr.
Peters’ arguments. In support of his contention that
2
See R.22 (Report of Recommendation of Magistrate Judge,
adopted by the district court at R.25).
3
On Mr. Peters’ first attempt to appeal this decision, this court
dismissed the appeal for lack of subject matter jurisdiction
because the judgment was not a final resolution of all claims
against all parties or an authorized interlocutory appeal. On
Mr. Peters’ motion, the district court amended its judgment to
dismiss all claims against all parties for lack of subject matter
jurisdiction, and Mr. Peters timely appealed.
6 No. 06-3735
Williamson County does not require exhaustion in this case
and that therefore the matter is ripe for federal adjudica-
tion, Mr. Peters makes three principal, but interrelated,
arguments. First, Mr. Peters claims that Williamson County,
by its terms, is limited to suits for compensation, not suits
seeking to enjoin an “unlawful” taking, and, therefore, at
minimum, his claim for injunctive relief should proceed
immediately. Next, he claims that Williamson County does
not require him to pursue speculative and unproven
compensation procedures available in Illinois. Finally,
he contends that Williamson County expresses a prudential
ripeness requirement, not an Article III requirement,
and that compelling reasons support a different pruden-
tial rule in a case such as this one.4
4
Mr. Peters also claims that a cause of action under 42 U.S.C.
§ 1983 does not require “exhaustion” of state remedies, see Patsy
v. Board of Regents, 457 U.S. 496, 516 (1982), and, at oral argu-
ment, he stated that there is no “exception” to this general
rule applicable to takings claims. In this respect, he misunder-
stands the use of the term “exhaustion” in the context of
Williamson County. As we stated in Daniels v. Area Plan Commis-
sion, 306 F.3d 445 (7th Cir. 2002),
the additional ripeness requirements of Williamson County
create a takings claim exception to Patsy’s general require-
ment that exhaustion is not required in § 1983 suits. There-
fore litigants, like the [plaintiffs] in this case, who assert a
takings claim under 42 U.S.C. § 1983 may not rely solely
on Patsy, but must meet the Court imposed ripeness require-
ments of Williamson County prior to bringing a federal claim.
Id. at 453; see also Williamson County Reg. Planning Comm’n v.
Hamilton Bank of Johnson County, 473 U.S. 172, 194-95 & n.13
(1985) (noting that “exhaustion” is not required, but that “no
(continued...)
No. 06-3735 7
More specifically, Mr. Peters contends that the Village’s
sanitary drainage system and the occupation and use of
his property for that system are illegal and unauthorized.
In his view, the Village has no ownership rights over the
property or over the ditch and tile on his property. Nor has
the Village, as a municipal entity without home rule
authority, any power of eminent domain over that prop-
erty. Consequently, he argues, he is entitled to injunctive
relief to end the occupation of the property by the Village.
He relies on our decision in Daniels v. Area Plan Commis-
sion, 306 F.3d 445 (7th Cir. 2002).
Mr. Peters then submits that there is another, and related,
reason why he should not be required to observe the
exhaustion requirement of Williamson County. He notes
that Williamson County requires the exhaustion of state
remedies only when the state procedures are available
and adequate. Williamson County, 473 U.S. at 194, 197.
When no such procedure is available in state court, the
requirement is inapplicable, and a litigant may resort to a
takings claim in federal court without any antecedent
4
(...continued)
constitutional violation occurs until just compensation has been
denied,” and, therefore, resort to state procedures is necessary).
Our cases have used “exhaustion” as a shorthand for the
requirement of resort to available state process identified in
Williamson County. See Greenfield Mills, Inc. v. Macklin, 361 F.3d
934, 957 (7th Cir. 2004); Daniels, 306 F.3d at 453; Forseth v. Vill. of
Sussex, 199 F.3d 363, 372 (7th Cir. 2000). We continue to do so
here, although we acknowledge the conceptual distinction
between our usual use of the term, see Patsy, 457 U.S. 496, and
the notion that an injured property owner’s takings claim is
not ripe until just compensation is denied, see Williamson County,
473 U.S. at 194-95.
8 No. 06-3735
litigation in the state forum. He contends that, because of
its non-home rule status, the Village is exempt from an
inverse condemnation remedy and, therefore, the only
possible state remedies available to him are speculative
and theoretical. Williamson County, he reminds us, im-
poses on him no obligation to expend time and resources
exploring such gossamer paths. The state avenue of relief,
he further reminds us, must be “reasonable” and “certain”
at the time of the taking. Id. at 194 (quoting Regional Rail
Reorganizational Act Cases, 419 U.S. 102, 124-25 (1974)).
Mr. Peters elaborates further that there is no specific
statutory remedy for inverse condemnation in Illinois and
that, therefore, a landowner who has been denied the use
of his property by the government, without an eminent
domain action having been brought, must bring a manda-
mus action against that governmental entity to compel it
to institute eminent domain proceedings. For such a
mandamus action to succeed, however, the defendant
governmental entity must have the authority to carry out
the task that the plaintiff claims it has a clear legal duty
to perform. Here, he continues, the Village, by virtue of its
status as a non-home rule municipality, has no authority to
bring the eminent domain proceeding which Mr. Peters
believes should have been brought. Moreover, he contin-
ues, with one exception not relevant here, the Village’s
powers are limited to its own territory, and Mr. Peters’
land is not within the boundaries of the Village. Conse-
quently, from Mr. Peters’ perspective, inverse condemna-
tion procedures are unavailable and inadequate and he
may proceed in federal court to seek injunctive and
compensatory relief.
No. 06-3735 9
B.
The Takings Clause of the Fifth Amendment provides
that no “private property [shall] be taken for public use,
without just compensation.” U.S. Const. amend. V. “While
it confirms the State’s authority to confiscate private property,
the text of the Fifth Amendment imposes two conditions
on the exercise of such authority: the taking must be for a
‘public use’ and ‘just compensation’ must be paid to the
owner.” Brown v. Legal Found. of Washington, 538 U.S. 216,
231-32 (2003) (emphasis added).
“The Fifth Amendment does not proscribe the taking of
property; it proscribes taking without just compensation.”
Williamson County, 473 U.S. at 194. This principle makes
clear that, ordinarily, compensation, not an injunction, is
the appropriate remedy for a taking that satisfies the public
use requirement. Patel v. City of Chicago, 383 F.3d 569, 574
(7th Cir. 2004). “[T]he federal courts’ role is not to enjoin
localities from exercising their eminent domain powers,
but to ensure that property owners are justly com-
pensated when localities exercise that power.” Id. at 574.5
Because “[n]o constitutional violation occurs until just
compensation has been denied,” Williamson County, 473
U.S. at 195 n.13, the Supreme Court has crafted a special
ripeness doctrine that applies to claims arising under the
Takings Clause. In Williamson County, the Supreme Court
considered a claim for a temporary regulatory taking,
5
See also McKenzie v. City of Chicago, 118 F.3d 552, 556 (7th Cir.
1997) (“States condemn and pay for land all the time; the
Takings Clause of the fifth amendment supposes that money
damages are a constitutionally adequate substitute for real
property.”).
10 No. 06-3735
occasioned by zoning regulations covering a particular
plot of land. The Court affirmed the dismissal of the action
by the landowner, holding it premature on two separate
bases. First, the Court ruled that the landowner had failed
to obtain a final decision from the state agency responsible
for the taking. Williamson County, 473 U.S. at 190-94
(explaining the final decision requirement). Second, the
Court reiterated the principle that the Constitution does
not prevent “taking[s],” but rather prohibits “taking[s]
without just compensation.” Id. at 194. A state need not
provide compensation prior to, or contemporaneous
with, the alleged taking, so long as there is a “reasonable,
certain and adequate provision” at the time of the taking
for an injured property owner to obtain just compensa-
tion from the state after the taking has been accomplished.
Id. at 194 (quoting Regional Rail Reorganization Act Cases, 419
U.S. at 124-25); see also id. at 196. Therefore, a plaintiff
property owner cannot claim a violation of the Just Com-
pensation Clause until he has sought and been denied
compensation under available state court procedures. Id.
at 194 n.13, 195.
We have described the alternate bases for dismissing the
claim in Williamson County as a two-pronged ripeness
requirement for takings claims: (1) a final decision by
the government entity responsible for the taking and
(2) exhaustion of state procedures. Forseth v. Vill. of Sussex,
199 F.3d 363, 372 (7th Cir. 2000). Since Williamson County,
we also have recognized that allegations of physical takings
are subject to a streamlined ripeness analysis; the taking
itself constitutes a final action, and therefore a court need
only assess whether the plaintiff had availed himself of
appropriate state procedures. Greenfield Mills, Inc. v.
Macklin, 361 F.3d 934, 958 (7th Cir. 2004).
No. 06-3735 11
Williamson County created a “limited exception to its
exhaustion requirement based on the futility of seeking
state court relief.” Daniels, 306 F.3d at 456. If a property
owner demonstrates that state procedures for obtaining
just compensation are either unavailable or inadequate,
the claim is immediately ripe in federal court. See William-
son County, 473 U.S. at 196-97; Daniels, 306 F.3d at 456, 457-
58.
Despite the strong presumption that damages, not
injunctive relief, is the appropriate remedy in a Takings
Clause action, our case law does acknowledge that there
are limited circumstances in which injunctive relief is
available. For instance, it is well accepted that, when the
government has taken property for a private, rather than a
public, use, injunctive or declaratory relief may be appro-
priate. See Daniels, 306 F.3d at 457 n.11. Similarly, the
Supreme Court has held that many facial challenges to
legislative action authorizing a taking can be litigated
immediately in federal court. See San Remo Hotel, L.P. v.
City & County of San Francisco, 545 U.S. 323, 345 (2005); Yee
v. City of Escondido, 503 U.S. 519 (1992); see also Holliday
Amusement Co. of Charleston v. South Carolina, ___ F.3d ___,
2007 WL 1893384, at *2 (4th Cir. July 3, 2007) (“[T]he
state procedures requirement does not apply to facial
challenges to the validity of a state regulation.”).
With these principles in mind, we now turn to Mr. Peters’
specific contentions. Mr. Peters submits that this futility
exception applies in this case. In his view, exhaustion
would be futile here because an inverse condemnation
remedy is not available to him under Illinois law. He
relies on Illinois precedent that states that the usual remedy
in Illinois “inverse condemnation” situations is a manda-
mus action seeking to compel the responsible agency to
12 No. 06-3735
institute condemnation proceedings, see, e.g., Luperini v.
County of DuPage, 637 N.E.2d 1264, 1268 (Ill. App. Ct. 1994);
if the agency (or local government) has no authority to
institute eminent domain proceedings, Mr. Peters contends,
a mandamus action against it will fail, and the state
will provide no remedy.
Mr. Peters has not met his burden of demonstrating that
it would be futile to pursue available remedies in state
court. In Illinois, inverse condemnation is a judicially
recognized remedy arising out of the self-executing tak-
ings provision of the Illinois Constitution. Illinois Const.
art. 1, § 15; see also Warner/Elektra/Atlantic Corp. v. County
of DuPage, 991 F.2d 1280, 1284-85 (7th Cir. 1993) (explain-
ing the availability of a judicially-created inverse condem-
nation action under the Illinois Constitution); Roe v. Cook
County, 193 N.E. 472, 474 (Ill. 1934) (interpreting the
Takings Clause of the Illinois Constitution as self-execut-
ing). Specifically, in Roe v. Cook County, 193 N.E. 472 (Ill.
1934), the Supreme Court of Illinois has stated that:
[w]hen the Constitution forbids the taking or damaging
of private property without just compensation and
points out no remedy, and no statute affords one, for
the invasion of the right of property thus secured, the
common law, which affords a remedy for every wrong,
will furnish the appropriate action for the redress of
such grievance.
....
It is entirely beside the point to say that even
though our bill of rights assures every person that his
property will not be taken for public use without just
compensation, yet where a county or other public
body violates this section by taking private property
No. 06-3735 13
without condemnation proceedings, one may not
recover simply because the Legislature has failed to
provide any specific remedy. If this were true, the
constitutional guaranty would be nugatory and private
property could be taken with impunity and without
redress to the injured property owner. The constitu-
tional provision itself, without remedial legislation, is
basic law, which not only confers a right but presup-
poses a remedy.
Id. at 473-74 (emphasis added). Under Roe’s interpretation
of the Illinois Constitution, the common law of Illinois
will afford Mr. Peters a remedy. Indeed, Mr. Peters does
not contend that Roe is no longer the law of Illinois; nor has
he identified a single case in which compensation was
refused on the basis that he asserts would doom his ef-
forts to obtain relief in Illinois courts.6 Rather, Mr. Peters
6
Some of our sister circuits also have taken the view that a self-
executing provision of a state’s constitution may constitute a
sufficiently reasonable, certain and adequate remedy to satisfy
the Fifth Amendment and, under Williamson County, is like-
wise sufficient to require the plaintiff to proceed in state court
before raising a federal takings claim. See Bateman v. City of
West Bountiful, 89 F.3d 704, 708-09 (10th Cir. 1996) (“A property
owner’s cause of action for inverse condemnation is provided
by Article I, section 22 of the Utah Constitution. This constitu-
tional provision is self-executing . . . . [The plaintiff]’s failure to
avail himself of the procedure renders his claim premature.”);
Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 380 (2d Cir.
1995) (holding that when a state’s constitution provides a
“straightforward takings clause,” even when no case provides
compensation for the precise kind of taking alleged by the
plaintiff, the plaintiff “is still required to look to the state for
(continued...)
14 No. 06-3735
claims that, despite the clear language in Roe, Illinois will
not provide a remedy. He bases this assertion on his
reading of Illinois precedent establishing the manner in
which claims under § 15 ordinarily proceed, that is, by
way of a mandamus action to force the municipality to
institute eminent domain proceedings, see, e.g., Luperini,
637 N.E.2d at 1268. Whatever subsequent Illinois cases
say about the usual method a landowner might use to
obtain compensation, Roe indicates that the courts of the
state will find a remedy if a taking has occurred. Based on
this clear statement by the Supreme Court of Illinois that
a remedy is available to injured landowners, we con-
clude that Mr. Peters “has not shown that the inverse
condemnation procedure is unavailable or inadequate, and
until [he] has utilized that procedure, [his] taking claim
is premature.” Williamson County, 473 U.S. at 197.7
6
(...continued)
compensation before its takings claim will lie”). But see
Asociación de Subscripción Conjunta del Seguro de Responsibilidad
Obligatorio v. Flores Galarza, 484 F.3d 1 (1st Cir. 2007) (“In our
view, [reasonable, certain and adequate procedures] do not
include litigation of a state takings claim or any general reme-
dial cause of action under state law. Rather, the Supreme Court
must have had in mind only those procedures specifically
designed by the state to avoid constitutional injury in the first
instance by providing a means for a plaintiff to obtain com-
pensation for the government’s taking of property.”).
7
As we noted in Rockstead v. City of Crystal Lake, 486 F.3d 963
(7th Cir. 2007), when “the obstacle to [just compensation] is a
state common law doctrine,” a plaintiff may face greater
difficulty in demonstrating that state procedures will fail him.
Id. at 966. “Judges do not make statutes or constitutions and
(continued...)
No. 06-3735 15
C.
Finally, Mr. Peters contends that Williamson County’s
requirements are prudential and insufficient to support the
district court’s decision that it lacked subject matter
jurisdiction in this case. He relies largely on Chief Justice
Rehnquist’s concurring opinion in San Remo Hotel, L.P. v.
City & County of San Francisco, 545 U.S. 323, 348-52 (2005),
which, Mr. Peters contends, “exposed” Williamson County’s
“fundamental and untenable doctrinal flaws.” Appellant’s
Br. at 10 n.2.
Williamson County’s ripeness requirements are prudential
in nature. See Suitum v. Tahoe Reg’l Planning Agency, 520
U.S. 725, 733-34 & n.7 (1997); Forseth, 199 F.3d at 368 n.7.
The prudential character of the Williamson County require-
ments do not, however, give the lower federal courts
license to disregard them. The Supreme Court has deter-
mined, as a matter of law, when federal takings claims
are ripe and has set forth a rule in Williamson County that
this court is bound to follow. In the absence of compliance
with Williamson County, the district court correctly dis-
missed this action.
Conclusion
We affirm the judgment of the district court.
AFFIRMED
7
(...continued)
cannot change them, but they do make, and they can—and
do—change, common law doctrines.” Id.
16 No. 06-3735
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-22-07