A recent Texas Supreme Court case on inverse condemnation has opened the door for a group of homeowners to continue in a lawsuit against their county and flood control district over property damage that was allegedly a known possibility when the government entities approved the housing development.  These cases are rare, so it’s an unusual opportunity to take a look at the concept of “takings” in a flood control context.

What is inverse condemnation?

There’s a fundamental concept in Federal and State Constitutions that the taking or damaging of private property for a public use must be compensated.  When private property is taken for public use without compensation, the property owner can file an inverse condemnation action to force the government to pay for the damage.  The policy underlying inverse condemnation claims is that a private individual should not be forced to bear a disproportionate share of the costs of a public project.

Can flooding lead to inverse condemnation claims?

Inverse condemnation cases arise in the context of flood control where a government action results in the flooding of private property.

In California, for example, current case-law suggests that an inverse condemnation action will be successful only if the deliberate design and construction of a project or public improvement causes physical injury to real property.  In other words, the project as planned must be the cause of the damage rather than faulty construction or maintenance of a project.  This high bar for success in an inverse condemnation case makes sense; if public agencies could be sued for just negligent maintenance, they may not choose to embark on projects that protect the public.…