Although the government's lack of intent to cause injuries
may be used as persuasive evidence that the injuries were
unnecessary to the public use and/or avoidable, the
presence or absence of intent is not dispositive on the
subject of the nature of the injuries.
In the instant case, the trial court correctly stated that
an inverse condemnation action does not "extend to
actions arising out of negligently tortious conduct." The
question of whether injuries are an avoidable or
unavoidable consequence of construction is one of fact.
See Utah Lake Irr. Co. v. Jensen, 49 Utah 19, 161 P. 677,
678 (1916).
II. FIFTH AMENDMENT CLAIMS
In its first amended complaint, Farmers asserts
several causes of action against the City under the fifth
amendment of the United States Constitution. The takings
clause of the fifth amendment provides, "[P]rivate
property [shall not] be taken for public use, without just
compensation." This language differs slightly from the
corresponding provision in the Utah Constitution, which
prohibits the taking and damaging of private property
without just compensation. Utah Const. art. I, § 22. Under
the facts of this case, however, the result is the same
under both constitutional provisions.
Under the United States Supreme Court's
interpretation of the fifth amendment, a "taking" does not
require complete destruction of the value of the property.
In United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61
L.Ed. 746 (1916), the Court allowed property owners to
recover fifth amendment compensation for a depreciation
in value to their lands and water rights as a result of the
government's construction and maintenance of locks and
dams on a river. The Court stated: "[I]t is the character of
the invasion, not the amount of damage resulting from it,
so long as the damage is substantial, that determines ...
whether it is a taking." Id. at 328, 37 S.Ct. at 385.
Because there was a direct invasion of the property and
"inevitably recurring" flooding, recovery was allowed. Id.
In Sanguinetti v. United States, 264 U.S. 146, 44
S.Ct. 264, 68 L.Ed. 608 (1924), a canal constructed and
operated by the government was insufficient to carry
away flood waters. As a result, the canal overflowed and
damaged the abutting property owners' trees, crops, and
land. The Court denied compensation under the takings
clause, stating: "[I]n order to create an enforceable
liability against the government, it is, at least, necessary
that the overflow be the direct result of the structure, and
constitute an actual, permanent invasion of the land,
amounting to an appropriation of, and not merely an
injury to, the property." Id. at 149, 44 S.Ct. at 265. The
Court noted, "If the case were one against a private
individual, his liability, if any, would be in tort." Id. at
150, 44 S.Ct. at 265.
The Court's holdings in Sanguinetti and Cress have
been applied more recently by other federal courts. In
National By-Products, Inc. v. United States, 405 F.2d
1256, 186 Ct.Cl. 546 (1969), a property owner was
denied compensation under the fifth amendment for
flooding caused by the overflow of a government-
constructed levee. In that case, the court of claims found
that the floods were a result of unique physical conditions
and were not inevitably likely to recur. Id. 405 F.2d at
1274. Echoing the Supreme Court in Sanguinetti, the
court stated, "The essential inquiry is whether the injury
to the claimant's property is in the nature of a tortious
invasion of his rights or rises to the magnitude of an
appropriation of some interest in his property
permanently to the use of the Government." Id. 405 F.2d
at 1273-74. The court of claims and other federal courts
have applied the same reasoning in a number of
subsequent cases involving damage from the overflow
and seepage of water. See, e.g., Baird v. United States, 5
Cl.Ct. 324 (1984); Berenholz v. United States, 1 Cl.Ct.
620 (1982), aff'd, 723 F.2d 68 (Fed.Cir.1983); Miller v.
United States, 583 F.2d 857 (6th Cir.1978); Hartwig v.
United States, 485 F.2d 615, 202 Ct.Cl. 801 (1973);
Harris v. United States, 467 F.2d 801 (8th Cir.1972), and
cases cited therein.
In the instant case, Farmers alleges a taking by virtue
of the City's diversion of Mill Creek and the resulting
seepage. That claim may not be sustained under the
foregoing cases, all of which specifically treat the issue of
damage to property caused by water. In addition, Farmers
seeks fifth amendment compensation for damage caused
by the City's unreasonable removal of lateral support, the
City's intentional and deliberate interference with
Farmers' use of its property and impairment of the value
of the property, and the City's failure to prevent or
remedy the tortious acts of the contractor. Although not
specifically involving damages caused by water, Farmers'
additional claims can also be denied under the principles
expressed in the foregoing cases.
All of the damages that Farmers has alleged are "in
the nature of a tortious invasion" of its rights rather than
rising "to the magnitude of an appropriation of some
interest in [its] property permanently to the use of the
Government." National By-Products, Inc. v. United
States, 405 F.2d at 1273-74. In this case, the "character"
of the damages does not meet the criteria established by
the Supreme Court as necessary to a fifth amendment
taking. In the language of the Court in Sanguinetti, the
damages alleged by Farmers are not the "direct result of
the structure," they do not "constitute an actual permanent
invasion of the land," nor do they amount to an
"appropriation" of Farmers' property interest. Sanguinetti
v. United States, 264 U.S. at 149, 44 S.Ct. at 265.
The injuries Farmers seeks to recover are properly
characterized as tortious and thus do not have
constitutional stature under the fifth amendment. The trial