MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 15 2016, 9:34 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William O. Harrington Daniel M. Witte
Harrington Law, P.C. Aimee Rivera Cole
Danville, Indiana Travelers Staff Counsel Office
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian L. Boyland; Jennifer K. July 15, 2016
Boyland; Anthony S. Climer; Court of Appeals Case No.
Lisa J. Climer; Sydney A. 06A05-1509-CT-1383
Climer; Anthony S. Climer and
Lisa J. Climer, as parents and Appeal from the Boone Superior
next friends of Lydia J. Climer, Court
The Honorable Matthew C.
Appellants-Plaintiffs,
Kincaid, Judge
v. Trial Court Cause No.
06D01-1110-CT-493
Kenneth Hedge, in his capacity
as Boone County Surveyor;
Boone County Drainage Board;
Boone County Board of
Commissioners; JPMorgan
Chase Bank, N.A.; Specialized
Loan Servicing, L.L.C.; and
PNC Bank,
Appellees-Defendants
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Bailey, Judge.
Case Summary
[1] Brian and Jennifer Boyland (“the Boylands”) and Anthony, Lisa, Sydney, and
Lydia Climer (“the Climers”) (collectively, “Homeowners”) brought negligence
and inverse condemnation claims against Kenneth Hedge (“Hedge”), in his
capacity as Boone County Surveyor, the Boone County Drainage Board, and
the Boone County Board of Commissioners (collectively, “the Boone County
defendants”).1 In answering the negligence claims, the Boone County
defendants raised a defense of discretionary function immunity. Homeowners
sought, and were denied, partial summary judgment on this defense. After a
bench trial regarding the applicability of the defense, judgment was entered for
the Boone County defendants on the negligence claims. Summary judgment
was subsequently granted to the Boone County defendants on the inverse
condemnation claims. Homeowners challenge the denial of their motion for
partial summary judgment on the immunity defense and also challenge the
grant of summary judgment on the inverse condemnation claims. We affirm.
1
JP Morgan Chase Bank, N.A., Specialized Loan Servicing, LLC, and PNC Bank were named as additional
defendants to answer for their respective interests in inverse condemnation proceedings. These parties were
not active parties in the litigation and are not active parties on appeal.
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Issues
[2] Homeowners present two issues for review:
I. Whether they were entitled to partial summary judgment
on the statutory affirmative defense of discretionary
function immunity, precluding the bench trial; and
II. Whether the trial court improvidently granted summary
judgment to the defendants on the inverse condemnation
claims.
Facts and Procedural History
[3] Homeowners own two parcels of residential property located on West County
Road 300 South in Boone County, Indiana. County Road 300 is at a higher
elevation than the residences, which appear to “sit in a bowl.” (Tr. at 666.)
The residential properties are beside Dickey Ditch, a tributary to Big Raccoon
Creek.2 The water flows east to west adjacent to the south property line of the
Climer property; it flows east to west adjacent to the south property line of the
Boyland property and then turns to flow south to north adjacent to the west
property line of the Boyland property.
[4] Several times since 2002, the Climers and Boylands have experienced
residential flooding that occurred after periods of unusually heavy rain. In
2
Dickey Ditch existed before the residences were constructed.
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2005, the Boylands filed a lawsuit against the Boone County defendants. The
lawsuit was dismissed.
[5] After dismissal of the first lawsuit, Hedge was notified of a subsequent flooding
event and persuaded the Boone County Drainage Board to obtain an
engineering study with respect to Dickey Ditch. The firm of Christopher B.
Burke Engineering, Ltd. performed a hydrologic and hydraulic analysis of
Dickey Ditch near the Homeowners’ properties and compiled a report (“the
Burke Report”). “Potential Measures” were identified in the Burke Report.
The potential measures identified included the following: replace existing
culverts; eliminate a 15 inch diameter culvert pipe; increase the ditch size;
remove sediment related to beaver dams; acquire the Homeowners’ properties;
and lower an area that effectively functioned as a levee because the elevation at
the south was higher than the elevation at the north.
[6] At a 2008 presentation before the Boone County Drainage Board (which
included three members who were also Boone County Commissioners), a
representative of the Burke engineering firm explained that replacement of
existing culverts could cost more than $870,000.00 and flooding risk would be
lessened but not eliminated. Also, he explained that reconstruction extensive
enough to result in a large bridge classification would require, by federal
regulation, an inspection every two years. There ensued some discussion
clarifying that “a million bucks” could be spent without a “cure,” and that the
Board of Commissioners would be tasked with making a final decision because
road crossings were involved. (App. at 324.) No vote was taken and no
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“potential measure” was specifically adopted. In the ensuing years, none of the
“potential measures” were implemented, other than tile repair, brush removal,
and destruction of beaver dams (with some related sediment removal).
[7] Flooding again occurred in 2011. On March 30, 2011, Homeowners served tort
claims notices on the Boone County defendants. Their first complaint was filed
on October 20, 2011. As later amended, after a flooding event in 2013, the
complaint sought injunctive relief and also asserted negligence, trespass, and
inverse condemnation claims. The Boone County defendants answered the
complaint and asserted that the affirmative defense of discretionary function
immunity precluded recovery on the negligence claims. Homeowners
requested that partial summary judgment be entered against the Boone County
defendants on the immunity defense while the Boone County defendants
sought summary judgment on the negligence claims on both immunity and
proximate cause grounds.
[8] On February 14, 2014, the trial court entered an order denying the cross-
motions. The trial court stated that the defendants had not shown their
entitlement to summary judgment because:
there is a genuine issue of material fact whether anything Boone
County did or did not do with regard to Dickey Ditch
proximately caused flooding to the Climer and Boyland
properties. A trial is necessary on that subject matter.
(App. at 976.) As for the immunity defense, the trial court concluded:
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Neither side, at this time, has demonstrated conclusively either
that there is or is not immunity. Accordingly, Plaintiff’s Motion
for Partial Summary Judgment on the question of immunity also
should be and now is DENIED.
(App. at 976.)
[9] On September 9, 2014, the trial court entered an order approving an “Agreed
Motion for Case Management and Separate Trials.” (App. at 1016.) It was
determined that two sets of claims would go forward – negligence and inverse
condemnation – and would proceed on separate “tracks.” (App. at 1017.)
First, the trial court was to conduct a bench trial “limited to the issue of
whether the defense of discretionary function immunity is available to
Defendants as a complete defense with respect to the negligence claims.” (App.
at 1018.) A jury trial on the negligence claims was tentatively scheduled. The
inverse condemnation claims were set for a subsequent jury trial date.
[10] On December 18, 2014, with the Homeowners’ objection having been made,
the trial court conducted a bench trial on the issue of availability of the
discretionary function immunity defense. On February 24, 2015, the trial court
entered judgment in favor of the Boone County defendants, concluding that
they were entitled to immunity.
[11] On April 28, 2015, the Boone County defendants filed a motion for summary
judgment with respect to the inverse condemnation claims. Homeowners filed
a cross-motion for summary judgment. On August 19, 2015, the trial court
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entered an order granting summary judgment to the Boone County defendants
on the remaining counts against them. This appeal ensued.
Discussion and Decision
Discretionary Function Immunity
Standard of Review
[12] Our review of the grant or denial of a summary judgment motion is the same as
it is for the trial court: whether there is a genuine issue of material fact, and
whether the moving party is entitled to judgment as a matter of law. Kroger Co.
v. Plonski, 930 N.E.2d 1, 4-5 (Ind. 2010). In conducting our review of the
evidence sanctioned by Indiana Trial Rule 56(C), we construe all factual
inferences in favor of the non-moving party, and all doubts as to the existence
of a material issue must be resolved against the moving party. Id. at 5.
[13] A genuine issue of material fact exists when the facts concerning an issue that
would dispose of the litigation are in dispute or where the undisputed material
facts are capable of supporting conflicting inferences on the issue. Indiana Dep’t
of Transp. v. Sadler, 33 N.E.3d 1187, 1190 (Ind. Ct. App. 2015). Where the
evidence is in conflict, or undisputed facts lead to conflicting inferences, a grant
of summary judgment is inappropriate, even if it appears that the nonmovant
will not succeed at trial. Id.
[14] Our standard of review is not altered by the fact that the parties made cross-
motions for summary judgment. Indiana Farmers Mut. Ins. Grp. v. Blaskie, 727
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N.E.2d 13, 15 (Ind. Ct. App. 2000). Instead, we consider each motion
separately to determine whether the moving party is entitled to judgment as a
matter of law. Alva Elec., Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d 263,
267 (Ind. 2014).
Analysis
[15] The Boone County defendants raised an affirmative defense described in
Indiana Code Section 34-13-3-3(7):
A governmental entity or an employee acting within the scope of
the employee’s employment is not liable if a loss results from the
following: (7) The performance of a discretionary function[.]
[16] The Indiana Tort Claims Act (“the ITCA”) provides that governmental entities
may be liable for torts committed by its agencies and its employees, but protects
governments from liability in certain circumstances. Peavler v. Monroe Cnty. Bd.
of Comm’rs, 528 N.E.2d 40, 42 (Ind. 1988). The policy underlying governmental
immunity is the idea that certain kinds of executive branch decisions should not
be subject to judicial review. Id. at 44. The separation of powers doctrine
forecloses the courts from reviewing political, social, and economic actions
within the province of coordinate branches of government. Id.
[17] In Peavler, our Indiana Supreme Court adopted the planning/operational test
for determining whether an act is a discretionary function:
[u]nder the planning/operational dichotomy, the type of
discretion which may be immunized from tort liability is
generally that attributable to the essence of governing. Planning
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activities include acts or omissions in the exercise of a legislative,
judicial, executive or planning function which involves
formulation of basic policy decisions characterized by official
judgment or discretion in weighing alternatives and choosing
public policy. Government decisions about policy formation
which involve assessment of competing priorities and a weighing
of budgetary considerations or the allocation of scarce resources
are also planning activities.
528 N.E.2d at 45 (internal citations omitted). “The critical inquiry is not
merely whether judgment was exercised but whether the nature of the judgment
called for policy considerations.” Id. Operational functions are characterized
by the execution or implementation of previously formulated policy. City of
Valparaiso v. Defler, 694 N.E.2d 1177, 1182 (Ind. Ct. App. 1998), trans. denied.
[18] Here, Homeowners do not argue that the trial court ultimately misapplied the
Peavler test when making the determination of immunity at the conclusion of
the bench trial. Rather, Homeowners focus upon their claimed entitlement to a
partial summary judgment order precluding the Boone County defendants from
further efforts to establish the defense.
[19] In denying partial summary judgment, the trial court stated that factual
development was needed for appropriate application of the
planning/operational test.3 Homeowners acknowledge that there were factual
3
The Peavler Court acknowledged that factual development may be necessary: “The issue of whether an act
is discretionary and therefore immune is a question of law for the court’s determination. The question may
require an extended factual development.” 528 N.E.2d at 46.
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disputes at that time. Although Homeowners took the position that
reconstructive efforts should have been undertaken, it was also disputed
whether inadequate maintenance played a role in flooding. At a minimum, the
trial court yet needed to identify the extent of the particular actions or inactions
by the Boone County defendants that were at issue.4 The trial court would then
evaluate the conduct by application of factors, as outlined in Peavler, which,
under most circumstances, point toward immunity:
The nature of the conduct: whether the conduct has a regulatory
objective; whether the conduct involved the balancing of factors
without reliance on a readily ascertainable rule or standard;
whether the conduct requires a judgment based on policy
decisions; whether the decision involved adopting general
principles or only applying them; whether the conduct involved
establishment of plans, specifications and schedule; and whether
the decision involved assessing priorities, weighing of budgetary
considerations or allocation of resources.
The effect on governmental operations: whether the decision
affects the feasibility or practicability of a government program;
and whether liability will affect the effective administration of the
function in question.
4
According to Homeowners, Dickey Ditch is a regulated drain in need of reconstruction, but also the
defendants failed to adequately maintain the ditch. The designated materials placed a major focus upon the
lack of implementation of measures identified in the Burke Report. However, there were references to
affirmative conduct, such as alleged creation of a swale and placement of culvert pipe that was allegedly
inadequate. In some cases, it may be understood that Homeowners claimed actions were taken, such as
sediment removal, but to an inadequate extent.
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The capacity of the court to evaluate the propriety of the
government’s action – Whether tort standards offer an
insufficient evaluation of the plaintiff’s claim.
Peavler, 528 N.E.2d at 46. The government is exposed to liability when no
policy-oriented decision-making process has been undertaken. Id. at 47.
[20] According to Homeowners, the trial court need not have conducted a bench
trial to implement this framework. Homeowners argue: “since the trial court
found that issues of fact existed regarding whether Discretionary Function
Immunity should apply, the trial court should have concluded that the
Discretionary Function Immunity Defense is not available to the Boone County
Defendants.” Appellants’ Br. at 31. As best we can discern Homeowners’
argument, they contend that summary judgment in their favor was mandatory
in light of factual disputes and the strict construction given to an immunity
statute enacted in derogation of the common law. This would seem to turn the
summary judgment standard on its head.
[21] Homeowners direct our attention to Farley v. Hammond Sanitary District, 956
N.E.2d 76 (Ind. Ct. App. 2011), an appeal brought by homeowners whose
basements had been flooded with sewage during a severe storm. In Farley, a
panel of this Court concluded that summary judgment had been improvidently
granted to the Hammond Sanitary District “on the plaintiffs’ tort claims on
grounds of immunity.” Id. at 83. The Farley decision relied heavily upon our
Indiana Supreme Court’s guidance in Gary Cmty. Sch. Corp. v. Roach-Walker, 917
N.E.2d 1224, 1226 (Ind. 2009).
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[22] In Roach-Walker, the plaintiff had slipped and fallen at a school. She brought
suit, claiming that the school’s negligence in maintaining the walkway had
caused her injury. At trial, the school had moved for a directed verdict,
contending that the ITCA conferred immunity because the fall occurred as a
result of temporary conditions caused by weather. 917 N.E.2d at 1225. The
trial court concluded that the claim of immunity raised disputed factual issues
and denied the motion. Id. The jury found for the plaintiff and the school
appealed.
[23] On appeal, the Court observed that the parties disputed only whether the fall
resulted from a temporary condition caused by weather and that “the record as
to weather conditions is inconclusive.” 917 N.E.2d at 1225. In response to the
request of the appellant-defendant that the Court adopt a rebuttable
presumption that all icy conditions are temporary, “effectively shifting the
burden to the plaintiffs to disprove immunity,” the Court observed: “Because
the ITCA is in derogation of the common law, we construe the act strictly
against limiting a claimant’s right to bring suit.” Id. at 1228-29. The Court also
discussed, in general, the establishment of the immunity defense:
Whether an immunity applies is a matter of law for the courts to
decide. The party seeking immunity bears the burden of
establishing the immunity. If the facts allow multiple reasonable
conclusions as to the element triggering the immunity, then the
governmental unit has failed to establish its immunity. Of
course, the government may still escape liability if it can
demonstrate it owed no duty to the plaintiffs, did not breach its
duty, or did not cause any damages.
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Id. at 1226.
[24] This language in Roach-Walker, later cited in Farley, a summary judgment case,
does not dictate the result desired by Homeowners. Homeowners ignore the
procedural posture of Farley, that is, the party asserting the immunity defense
had been granted summary judgment despite factual issues. There, this Court
stated:
We are required by our standard of review to construe the facts in
the light most favorable to Farley and Paul. These facts allow
multiple reasonable conclusions as to an element triggering
governmental immunity; consequently, HSD has failed to establish
its immunity.
Farley, 956 N.E.2d at 83 (emphasis added).
[25] Homeowners apparently believe that they were entitled to partial summary
judgment on the immunity defense because the Boone County defendants did
not show the absence of a factual dispute. We must review Homeowners’
motion separately, Alva Elec. Inc., 7 N.E.3d at 267. Under our summary
judgment standard, Homeowners could not prevail by showing the existence of
a factual dispute. Rather, Homeowners would properly be granted partial
summary judgment only if they demonstrated the absence of a genuine issue of
material fact and that they were entitled to partial summary judgment as a
matter of law. That is, Homeowners needed to establish that the Boone County
defendants were not entitled to immunity as a matter of law. T.R. 56(A). They
did not do so. The trial court properly denied the motion for partial summary
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judgment and proceeded with a hearing to allow the development of an
extended factual basis for determining the question of immunity.
Inverse Condemnation
[26] Article 1, section 21 of the Indiana Constitution provides that “No person’s
property shall be taken by law, without just compensation; nor, except in case
of the State, without such compensation first assessed and tendered.” The Fifth
Amendment to the U.S. Constitution similarly provides that “nor shall private
property be taken for public use, without just compensation.” The Fifth
Amendment’s Takings Clause applies to the states through the Due Process
Clause of the Fourteenth Amendment. State v. Kimco of Evansville, Inc., 902
N.E.2d 206, 210 (Ind. 2009). The state and federal takings clauses are textually
indistinguishable and are to be analyzed identically. Id. An exercise of eminent
domain is clearly a taking; however, other forms of governmental action are
“takings” only if they meet the prevailing federal standard. Id. at 210-11. That
standard is: governmental action effects a taking if it deprives an owner of all or
substantially all economic use of his or her property. Id. at 211. However,
legislatures may confer greater rights to compensation for government action
than those afforded by the constitutional takings clauses. Id. at 212.
[27] Indiana Code Section 32-24-1-16 provides:
A person having an interest in property that has been or may be
acquired for a public use without the procedures of this [Eminent
Domain] article or any prior law followed is entitled to have the
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person’s damages assessed under this article substantially in the
manner provided in this article.
[28] Homeowners’ amended complaint alleged that, “by breaching their duties,” the
Boone County defendants had “acquired the [Boyland and Climer] Real Estate
for a public use – namely, as an extension of the Dickey Ditch, without
following the procedures for acquiring real estate by eminent domain under
Indiana law.”5 (App. at 70.) They now contend that the trial court
improvidently granted summary judgment to the defendants on the inverse
condemnation claims.
[29] With respect to inverse condemnation claims, our Supreme Court has stated the
following:
The state has inherent authority to take private property for
public use. Kelo v. City of New London, 545 U.S. 469, 477, 125 S.
Ct. 2655, 162 L. Ed. 2d 439 (2005). The Indiana Constitution
and the Fifth Amendment require just compensation if this
authority is exercised. Schnull v. Indianapolis Union Ry. Co., 190
Ind. 572, 575, 131 N.E. 51, 52 (1921). Indiana Code Chapter 32-
24-1 (2004) outlines the process by which the state is to initiate
eminent domain proceedings. If the government takes property
but fails to initiate proceedings, Section 32-24-1-16 explicitly
allows an owner of property acquired for public use to bring a
suit for inverse condemnation to recover money damages:
5
The Homeowners now contend that, in 2002, prior to their Tort Claims Notice filed in this case, the Boone
County defendants accomplished a “taking” by “diverting additional drainage into the Dickey Ditch
upstream of Plaintiffs’ property via the Large Drainage Swale.” Appellants’ Br. at 37. They describe their
properties “as a retention pond.” Appellants’ Br. at 38.
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A person having an interest in property that has been or may be
acquired for a public use without the procedures of this article or
any prior law followed is entitled to have the person’s damages
assessed under this article substantially in the manner provided in
this article.
An action for inverse condemnation requires: “(1) a taking or
damaging; (2) of private property; (3) for public use; (4) without
just compensation being paid; and (5) by a governmental entity
that has not instituted formal proceedings.” 29A C.J.S. Eminent
Domain § 560 (2007).
Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010).
[30] An inverse condemnation action has two stages: (1) the landowner must show
that he has an interest in land which has been taken for public use without
having been appropriated under eminent domain laws; and (2) if the court finds
that a taking has occurred, then the court appoints appraisers and damages are
assessed. Mendenhall v. City of Indianapolis, 717 N.E.2d 1218, 1227 (Ind. Ct.
App. 1999), trans. denied. A taking by inverse condemnation includes any
substantial interference with private property that destroys or impairs one’s free
use, enjoyment, or interest in the property. Id. Ordinarily, the question of
whether a particular interference is substantial is a question of fact for the fact-
finder. Id. An action for inverse condemnation is premature until such time as
the landowner can establish that his property has been deprived of all
economically beneficial or productive use. Id. at 1227-28.
[31] If there is no public use, neither eminent domain nor inverse condemnation
would apply. Murray at 733. Whether a particular use is a public use is a
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question of law. Id. (citing 11A Ind. L. Enc. Eminent Domain § 10, at 254
(2007)).
[32] In Beck v. City of Evansville, 842 N.E.2d 856 (Ind. Ct. App. 2006), homeowners
sought damages on a claim of inverse condemnation after the City of Evansville
suffered two major storm events, one in 2003, and one in 2004. Surface water
and sewage flowed on the property and into the homeowners’ homes. The
homeowners appealed challenging the trial court’s grant of summary judgment.
In affirming the trial court’s decision, this Court stated:
[T]here has been no taking of any actual physical part of the
homeowners’ real estate, nor have any important rights attached
to the real estate been taken. There has been no permanent
physical occupation of any definable part of the homeowners’
property, and there has been no transfer of a definable part of the
homeowners’ properties. To the contrary, the homeowners or
tenants have continued to live in their homes. In essence, the
homeowners’ free use, enjoyment, and interest in their properties
have not been impaired. Thus, we conclude that there has been
no taking of the homeowners’ property as a matter of law under
either the United States or Indiana Constitutions.
842 N.E.2d at 864.
[33] Similarly, in Rodman v. Wabash, 497 N.E.2d 234 (Ind. Ct. App. 1986), we held
that sewer backup into a homeowner’s basement six times over the course of a
three-year period did not constitute a taking. In affirming the trial court’s grant
of summary judgment in favor of the city, we stated:
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A taking may be found when governmental activity results in
significant physical damage to property that impairs its use. The
distinction between regulation and taking is one of degree. The
state possesses the power to regulate property without payment
of compensation, but if the regulation goes too far in impairing
the use of property, a taking will be found.
Six times from the spring of 1980 through the spring of 1983, city
sewers have backed up into the Rodmans’ basement. The record
does not indicate how long the sewage remained in the basement
after each episode or how long the use of the Rodmans’ basement
was seriously interfered with. We find that short term
interference, presumably for a few days, six times over the course
of a three year period does not rise to the level of a taking.
There has been no permanent physical occupation of a definable
part of the Rodmans’ property, nor has there been a transfer of a
definable part of their property. Nor has the City removed the
Rodmans’ right to exclude others from their property. We find
the trial court correctly concluded no genuine issue of material
fact existed on the Rodmans’ federal constitutional claim [of just
compensation for a taking].
497 N.E.2d at 242.
[34] Homeowners rely upon Arkansas Game & Fish Comm’n v. United States, 133 S.Ct.
511 (2012), to support their argument that damages resulting from temporary
flooding can amount to a compensable taking. Arkansas Game involved periodic
flooding of forest land by the U.S. Army Corps of Engineers. From 1993 until
2000, the repeated flooding damaged or destroyed more than 18 million board
feet of timber and disrupted the ordinary use and enjoyment of the Arkansas
Game and Fish Commission’s property. The Court ruled that “government-
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induced flooding temporary in duration gains no automatic exemption from
Takings Clause inspection.” 133 S.Ct. at 522. Also relevant to the takings
inquiry is the degree to which the invasion is intended or is the foreseeable
result of authorized government action. Id. So too are the character of the land
and the owner’s reasonable investment-backed expectations regarding the land
use. Id.
[35] Here, there is no intentional invasion of Homeowners’ property, as was the case
in Arkansas Game. The designated evidence, including Board minutes,
demonstrates that the Boone County defendants paid approximately $14,000.00
to an engineering firm in the hopes of preventing the invasion of waters onto
Homeowners’ properties. The Boone County defendants did not garner a
benefit and Homeowners’ property was not subjected to public “use.” Rather,
the designated evidence discloses circumstances akin to those present in Beck
and Rodman, that is, an unintended and short-term interference as opposed to a
permanent physical occupation. The summary judgment materials would
support but one conclusion: the temporary occupation of Homeowners’
property by surface water that had increased in volume during extraordinary
rainfall did not amount to a taking by the Boone County defendants for public
use.
Conclusion
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[36] The trial court properly denied Homeowners’ motion for partial summary
judgment prior to the bench trial. The trial court properly granted summary
judgment to the defendants on the inverse condemnation claims.
[37] Affirmed.
Bradford, J., and Altice, J., concur.
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