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United States District Court, Northern District of Illinois, E.D

June 23, 1982


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


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 Constitution. In reviewing the law of takings, the Court stated:

  We note that a long line of Supreme Court cases
  appears to establish that the facts of
  substantial economic loss and significant
  diminution in value alone do not

  establish compensable takings. . . . Although
  there is language in several Supreme Court
  decisions to the effect that the extent of the
  diminution of value is relevant, the fact of
  economic loss alone does not add up to a
  taking. . . .

    The recent cases in which takings have been
  found suggest that it may be that takings exist
  only when the diminution in values amounts to the
  total destruction of the value of an identifiable
  thing which is, or would have been, perceived by
  a reasonable owner as the subject of a distinct
  investment. . . .

    Whatever else can be said about the law of
  takings, government action which interferes with
  the value of land only by making it less
  desirable for its present uses does not effect a
  taking. . . . Since plaintiffs' four tracts of
  land indisputably remain suitable for the uses to
  which they had been put prior to the
  establishment of the dump, the bad smells and
  health hazard created by the dump have not
  impaired the use of the land sufficiently to
  effect a taking.

Id. at 100-01. The Court then indicated that those plaintiffs whose land bordered the creek polluted by leachate from the dump might have a claim for a partial taking because the evidence suggested that not only was the creek now unsuitable for its prior uses, but that it posed such a health hazard that it had to be fenced off to prevent any use. The Court compared this to the flooding cases such as Barnes, supra. Id. at 101.

Taking these principles and applying them to the instant complaint raises a substantial question whether plaintiffs have alleged a taking. The complaint only alleges "repeated" flooding, although plaintiffs argue that every time it rains, their property is flooded. To constitute a taking, plaintiffs will have to make good on their argument; they will have to show that every time it rains, their property is inevitably flooded. Moreover, to establish a taking, they will have to show substantial damage to their property or an interference with their use of their property of such magnitude that it amounts to an easement. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). If plaintiffs can only show that their basements are flooded with a couple of inches of sewage water for a few hours, it is likely that no taking will be found. Finally, there is language in the decisions which suggests that the flooding must not be preventable; otherwise it is only a trespass and not a taking. Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264, 68 L.Ed. 608 (1924).

The court sincerely doubts whether plaintiffs will be able to establish a taking of their property in this case. However, because the issue is before the court on a motion to dismiss, the record does not offer sufficient facts from which to draw any firm conclusions. Cf. O'Grady v. City of Montpelier, 573 F.2d 747, 751 (2d Cir. 1978).

In O'Grady, the plaintiffs alleged a deprivation of property without due process because a change in the grade of the street in front of their garages caused water to drain into the garages rendering them unusable. The Second Circuit reversed the dismissal of their complaint, stating:

  Whether damage to appellants' garages allegedly
  caused by the water drainage was sufficient to
  constitute a taking is, however, unclear on the
  basis of the briefs and affidavits submitted
  below. . . . They do not reveal where the water
  comes from, whether the drainage is without
  cessation, whether the two units are continuously
  unusable, the extent of the structural damage, if
  any, or the amount of rental income lost.
  Appellants may have a right to compensation under
  Vermont law, but this does not necessarily mean
  that they have been deprived of their property in
  the sense contemplated by the Fifth and
  Fourteenth Amendments. Obviously, not every
  interference with a property right gives rise to
  a constitutional cause of action, as the land use
  regulation cases amply demonstrate.

Id. As in O'Grady, the court here must conclude that the record is too scanty to determine that no taking has occurred.

As the court has determined that plaintiffs' claim that a taking occurred survives the motion to dismiss, the court need not determine whether something less than a taking states a claim under the Fourteenth Amendment in the circumstances of the present case.

Defendants also argue that the availability of state law remedies obviates any due process problems here, relying on Bonner v. Coughlin, 517 F.2d 1311, 1319 (7th Cir. 1975); cited with approval by the Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981). Language in Supreme Court cases indicating that "[w]here only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process," Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981); Mitchell v. W.T. Grant Co., 416 U.S. 600, 611, 94 S.Ct. 1895, 1902, 40 L.Ed.2d 406 (1974); both quoting Phillips v. Commissioner, 283 U.S. 589, 596-97, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931), lends support to defendants' position. The Seventh Circuit, however, has apparently limited the application of this analysis to cases involving negligence only, see the discussion in McCowen v. City of Evanston, 534 F. Supp. 243, 249 (N.D.Ill. 1982).

Here, plaintiffs have alleged that their lift station repeatedly malfunctioned and that defendants intentionally failed to repair it. Again, at this stage in the proceedings, plaintiffs' allegations survive a motion to dismiss. After further development of the facts, if it becomes evident that defendants' conduct falls below the level of intentional or reckless nonfeasance, the availability of state law remedies will become relevant to the court's evaluation of what process is due in this case.*fn3

As to the state law claims, the court declines to exercise pendent jurisdiction over them. They raise questions of negligence under Illinois tort law that are not otherwise present in the case and may prolong discovery of and confuse the issues in the federal counts. Accordingly, Counts II, IV, VI and VIII are dismissed.

Finally, defendants have moved to dismiss the complaint as to the City of Crest Hill, arguing that the claims against it are based solely on a theory of respondeat superior, which is insufficient to impose liability under § 1983. To hold the city liable, plaintiffs must allege a municipal policy or custom that caused the individual defendants' challenged conduct. Powe v. City of Chicago, 664 F.2d 639, 649-50 (7th Cir. 1981). The Seventh Circuit has adopted the rule that "where the plaintiff alleges a pattern or series of incidents of unconstitutional conduct, then the courts have found an allegation of policy sufficient to withstand a dismissal motion." Id. at 650. Here, plaintiffs have alleged a series of floodings; this is sufficient on a motion to dismiss to raise an inference of municipal policy or custom. Once again, discovery may reveal the absence of any municipal policy or custom in this case.


Defendants' motion to dismiss is granted as to the claims of deprivation of liberty, denial of equal protection, interference with peaceful enjoyment of land, and partial taking without just compensation in Counts I, III, V and VII, and as to Counts II, IV, VI and VIII. Defendants' motion is denied as to the claims of partial taking without due process and as to the City.

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