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DUTTON v. CITY OF CREST HILL

June 23, 1982

MITCHELL K. DUTTON, WILMA K. DUTTON, JOSEPH PERRA, EVELYN PERRA, CARL SCHWAB, SUSAN SCHWAB, ANDREW DOLNAK, AND ANN DOLNAK, PLAINTIFFS,
v.
CITY OF CREST HILL, RUSSELL DELONG, JOHN DJERF, AND FELIX BORIO, DEFENDANTS.



The opinion of the court was delivered by: Getzendanner, District Judge.

MEMORANDUM OPINION AND ORDER

The plaintiffs in this action are homeowners and residents of the City of Crest Hill in Illinois. The defendants are the City, its Superintendent of Public Works, the City Engineer and the Mayor. The action is brought under Section 1983 of the Civil Rights Act. Plaintiffs basically complain that the Elrose Court Area Lift Station which serves the area of Crest Hill in which plaintiffs reside is inadequately maintained and as a consequence whenever it rains raw sewage floods into plaintiffs' homes. In Counts I, III, V, and VII, plaintiffs assert that defendants' conduct in failing to repair and maintain the lift station violates plaintiffs' constitutional and civil rights, including deprivation of equal protection under the law, a partial taking of their property without due process of law and without adequate compensation, interference with plaintiffs' peaceful enjoyment of their land and home, and, finally, deprivation of liberty without due process of law. Pendent state law counts are also added in Counts II, IV, VI and VIII. Plaintiffs seek a mandatory injunction and actual and punitive damages.

The defendants have moved to dismiss the claims based on allegations of deprivation of liberty and interference with the peaceful enjoyment of plaintiffs' land and homes. The court agrees that the Amended Complaint does not contain allegations which plead a deprivation of liberty. The court further agrees that the alleged "interference with the peaceful enjoyment of land and home" is not a separate constitutional claim but part of plaintiffs' claims of a partial taking without due process or adequate compensation.

Defendants have also moved to dismiss the claims alleging a denial of equal protection. These claims are based on plaintiffs' allegation that the lift station servicing their homes was not repaired while other lift stations were. Taking this allegation as true for purposes of this motion to dismiss, it does not rise to the level of a denial of equal protection.

Defendants cite Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944), for the proposition that a denial of equal protection requires a showing of "intentional or purposeful discrimination," which may be satisfied either by showing action against a particular class or by extrinsic evidence showing a discriminatory design not evident from the action itself. Plaintiffs concede that this is the rule but argue that the bare allegation that other lift stations were repaired when their station was not establishes intentional discrimination. It does not, absent any facts indicating that defendants' purpose in failing to repair the Elrose Court Area Lift Station was to deprive these particular homeowners of adequate sewers.

Next, defendants have moved to dismiss plaintiffs' claim that defendants' conduct constituted a partial taking of their property without adequate compensation. This claim is apparently based on the Fifth Amendment. "It is well settled that this provision is a limitation upon the power of the United States only and is not applicable to the states." 2A Nichols, The Law of Eminent Domain § 7.31. However, the Supreme Court has held that the due process guaranteed under the Fourteenth Amendment includes the right to just compensation whenever a state appropriates private property for a public use. Chicago, B & Q Railroad v. City of Chicago, 166 U.S. 226, 235-41, 17 S.Ct. 581, 584-86, 41 L.Ed. 979 (1897). See also O'Grady v. City of Montpelier, 573 F.2d 747, 750 n. 8 (2d Cir. 1978).

Plaintiffs cannot successfully contend that Illinois provides no mechanism for compensating landowners whose property is taken for public use. See Ill.Rev.Stat. ch. 47, ¶ 1. Assuming that there was a taking here, the availability of such a state law mechanism precludes finding any taking by the state without just compensation in violation of the Fourteenth Amendment. Light v. Blackwell, 472 F. Supp. 333 (E.D.Ark. 1979), aff'd without opinion, 620 F.2d 307 (8th Cir. 1980); KAO v. Red Lion Municipal Authority, 381 F. Supp. 1163 (M.D.Pa. 1974).*fn1

Plaintiff's final federal claim, that the repeated flooding of their homes is a partial taking without due process in violation of the Fourteenth Amendment, presents a more difficult question.

To adequately allege a cause of action under § 1983 plaintiffs must show action under color of state law that violates the Constitution. The parties appear to agree that defendants' conduct was action under color of state law, so the inquiry must focus on whether there has been a constitutional violation. To adequately allege a violation of the Fourteenth Amendment, plaintiffs must show action that is attributable to the state, a property right cognizable under state law, a deprivation of that right, and the absence of due process. In this case, the controversy centers on whether there has been a deprivation and, if so, whether it was without due process.

The Fourteenth Amendment does not speak of "takings" of property; it refers to "deprivations" of property. Plaintiffs' complaint assumes that the two concepts are the same. Indeed, several courts have treated the two ideas as coextensive, but without directly addressing the issue. E.g., O'Grady v. City of Montpelier, 573 F.2d 747 (2d Cir. 1978). Moreover the Supreme Court and the Court of Claims have on several occasions implied that interferences with property rights that do not rise to the level of takings are only common law torts and not actionable under the Fourteenth Amendment. United States v. Lynah, 188 U.S. 445, 472, 23 S.Ct. 349, 357, 47 L.Ed. 539 (1901); Accardi v. United States, 220 Ct.Cl. 347, 599 F.2d 423, 429 (1979); Barnes v. United States, 538 F.2d 865, 870 (Ct.Cl. 1976). At this point in the proceedings, this court need not offer an opinion on the issue.

Certainly not every interference with a property interest is of constitutional magnitude. Assuming that plaintiffs must establish a taking of their property to prevail on their due process claim, there is some question whether flooding, unless it is permanent or inevitably and regularly recurring, constitutes a taking, partial or otherwise. The taking cases draw a distinction between mere tortious invasion of property rights and a taking in the constitutional sense.

  Over the years the decisions have developed the
  law of eminent domain as applied to instances of
  flooding. Generally speaking, property may be
  taken by the invasion of water where subjected to
  intermittent, but inevitably recurring,
  inundation due to authorized Government action.
  United States v. Cress, 243 U.S. 316, 37 S.Ct. 380,
  61 L.Ed. 746 (1917). We have so held in numerous
  cases. . . . The cases disclose the rule that the
  permanent, intermittent flooding which amounts to a
  taking must be frequent, and productive of
  substantial damage. Government-induced flooding not
  proved to be inevitably recurring occupies the
  category of mere consequential injury, or tort. In
  such cases recovery is not authorized in [the Court
  of Claims].*fn2

Barnes v. United States, 538 F.2d 865, 870 (Ct.Cl. 1976). Accord, Accardi v. United States, 220 Ct.Cl. 347, 599 F.2d 423, 429 (1979); Harris v. United States, 467 F.2d 801, 803 (8th Cir. 1972). As the court stated in National By-Products, Inc. v. United States, 186 Ct.Cl. 546, 405 F.2d 1256, 1273 (1969), "one, two or three floodings by themselves do not constitute a taking."

In Ortega Cabrera v. Municipality of Bayamon, 562 F.2d 91 (1st Cir. 1977), the Court considered whether a lessening of property value due to noisome odors and water pollution from a nearby city dump constituted a taking under the ...


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