Sunday, December 28, 2008

1st DCA - Gov't Flooding of Property is a Taking

In Drake v. Walton County, the 1st DCA concluded that a county decision to "redivert" water across the Plaintiff's land was a taking.

If the case were merely a "flooding" case where the government drainage project or action causes permanent (even if periodic) flooding of land, it would not bear much mention - or the dissent. But here, the facts are very convoluted, and involve lands that had been subject to flooding, then were protected by a drainage project - which did not work - and then were subjected to flooding again when the drainage project was removed or altered. This creates understandable confusion in determining how the common law right to put water on downward properties (at least to historic amounts) can conflict with the government's liability when it alters drainage patterns.


  1. Hey Robert, this actually is happening more and more. FDOT widens roads and replaces bridges without enough study to check who floods and does not flood. Water rising just a few inches can be acres of Taking. I study this all the time:

  2. Anonymous2:27 PM

    I live in Cocoa, Fl. the city of Cocoa is
    building a Wildlife Conservation Park in our subdivision, but the
    problem is the city didn't check the density of the soil under my home,
    which is a Mobile Home, to see if an lift station could be put 50 or
    less feet from my home, I live on a dead end.
    On Dec.14, 09 CMA Construction Company began construction and water was
    sucked from the ground for 2 weeks or so, now my home is coming apart,
    and my ceiling is leaking, walls are worped, trim is coming off and
    walls are coming apart, driveway had small cracks which now an finger
    can go in. The contractors Ins adjuster came out and also an engineer
    on Jan 18, 2010 took soil samples and lots and lots of pictures.
    I had contacted the city of Cocoa, which I have emails from several
    passing the buck, and one that says, alleged damage, and a stormwater
    retention area going to the north of me which a City official called it
    water front property. I have not responded to his childish statement.
    I have heard from the Ins Adjuster, they are not agreeing to fault. I am not sure what else
    to do but to wait as my home just falls apart, I have timeline pictures
    of all the damage of my sinking home.
    I am 47yr single mom of 2 at home 11/13 yrs olds, I work and own my
    home and land.
    My neighbor to the east of me retired elderly lady, lives alone. Has just as much damage to her home.
    We both want to find a lawyer to help us in this mess. I believe that
    the City of Cocoa and CMA Construction are both the cause of the
    negligence of not testing the soil prior to digging.

  3. Yes Dewatering activities could have resulted in the failure. You would need a geotech to confirm.