Flooding and Inverse Condemnation Proceedings
This summer, South Dakota received a presidential disaster declaration due to the historic 1,000-year flooding event that occurred between June 16 and July 8, 2024. Four counties qualified for individual Federal assistance for residents and business owners. Landowners outside of those counties, however, may be looking to their municipalities to reimburse them for the damage caused to their homes and businesses by the extreme flooding this summer.
Such claims have been previously brought before South Dakota courts as “inverse condemnation” suits, which are eminent domain proceedings initiated by the property owner, rather than the government condemnor. See e.g., Hamen v. Hamlin County, 2021 SD 7, ⁋ 18, 955 N.W.2d 336, 336. Landowners whose property is taken for public use, or whose property is damaged through the taking of other property for public use, may recover compensation under the damages clause of Article VI of the South Dakota Constitution. Id. at 344.
The South Dakota Supreme Court has addressed inverse condemnation suits between private landowners and public entities specifically in the context of floodwaters in multiple instances. Such instances are usually limited to claims for damage to property by the government’s use or taking of land adjacent to the landowner’s property, rather than an outright taking of the property. In such cases, the landowner must show that the public entity took and used another property that was located in such a way as to cause damage to the landowner’s property. Krier v. Dell Rapids Twp., 2006 SD 10, ⁋ 21, 709 N.W.2d 841, 847. Additionally, the resulting injury must be peculiar to the owner’s land, and not of a kind suffered by the public as a whole. Id.
For example, in Smith v. Charles Mix County, the landowner’s farm property ran alongside a highway. 182 N.W.2d 223, 223 (SD 1970). About one mile from the property, a creek crossed the highway. Id. An unusually heavy rainfall caused the creek to rise, and overflow water not only filled the ditch, but also flooded the land on the other side of the highway from the landowner’s property. Id. at 224. To save the highway grade, the county installed culverts under the highway, releasing the floodwater, which had been impounded on one side of the highway through to the other side, resulting in flooding of a portion of the landowner’s property. Id. The South Dakota Supreme Court upheld an award of damages to the landowner for the flood damage to his property, and stated that, in the maintenance of highways, a public entity “cannot divert surface waters into unnatural watercourses or gather water together in unnatural quantities and then cast it upon lower lands in greater volume and in a more concentrated flow than natural conditions would ordinarily permit.” Id.
On the other hand, the Second Circuit Court in Minnehaha County found in Riedemann v. City of Sioux Falls, et al. that the landowner failed to show that the City caused or increased unnatural flooding of their land. 49CIV19-157, Memorandum of Decision, 13. Although this is a trial court decision and not a binding Supreme Court ruling, the trial court provided a good summary of the existing precedent and drew conclusions that suggest how other courts may respond. In Riedemann, the landowner specifically tried to base their claim on the City’s lack of earlier action to prevent flooding of their property, as the City had undertaken a drainage improvement plan only after significant flooding damage had occurred. Id. However, the court found that a requirement of a deliberate governmental action, rather than mere inaction or delayed action, for recovery on inverse condemnation claims, aligns with South Dakota precedent. Id. at 14.
Ultimately, the circuit court concluded that, “[t]o permit a recovery to Plaintiffs through inverse condemnation in this case would be to make the City an insurer of its citizens against flooding, strictly liable to all landowners who suffer flooding and assert that the City’s general involvement, lack of action, or delayed action in urban development, roadway maintenance, and storm drainage has somehow resulted in their property being flooded.” Id. at 15. This would, of course, be an unreasonable burden to place on a city, and the courts have established clear principles for when City action constitutes a taking, resulting in damages to a landowner, and when it does not.
