Monthly Archives: April 2021

Nearly every week OCA receives one or more phone calls from concerned property owners relating to flooding or other water related events causing significant damage to their property. With climate change and global warming placing ever increasing burdens on our aging public infrastructure, these complaints are likely to continue and even increase. Indeed, OCA member  Randall Smith (whose practice in lowlying Louisiana places him at the forefront of this issue) recently won a lawsuit against the City of Mandeville over a municipal drainage project’s impact on land owned by Hilda Maestri Landry. Randall’s lawsuit alleged that the project altered the natural flow of the Ravine Au Coquilles, also known as No Name Bayou, so that it overflowed its natural banks to impact the Landry property. In the court’s judgement recognizing the legitimacy the claim, instead of awarding damages, the court ordered the city to dig out part of the ravine, place backfill, and install pipes to correct the problem. The court also directed the city to do the work with oversight by the owner’s expert and to pay all costs incurred by the landowner. If you are experiencing a floodng event that you believe is the result of government actions, reach out to an OCA member or read this helpful article on OCA’s website, entitled,“My Property is Being Flooded–Is That a Taking That I Can Be Compensated For Under the Constitution?” 

We are disappointed in the recent decision by the Wisconsin Supreme Court upholding a pre-condemnation jurisdictional offer made by the Wisconsin Department of Transportation (DOT) to a property owner that deviated substantially from the Department’s own appraisal which, under Wisconsin law, is required to form the basis of the offer. As three Supreme Court Justices (including the Chief Justice) correctly pointed out in their strong dissent, the jurisdictional offer was not based upon the appraisal that DOT had provided the owner, but rather on DOT’s own internal administrative review. An important factor in the case was the difference between DOT’s appraisal of $133,400 and the jurisdictional offer of $403,200, resulting in a 202% increase in value. OCA filed an Amicus Brief in this important case which can be viewed here. 

Mark your calendars for the next ALI-CLE Eminent Domain and Land Valuation Litigation Conference to be held in Scottsdale, Arizona at the Scottsdale Resort at McCormick Ranch. The conference dates are January 27-29, 2022. Exploring a full range of cutting-edge issues and drawing professionals from across the country, this annual conference is always “the place to be” for all eminent domain and land use practitioners looking to learn from recognized and experienced professionals representing the diverse stakeholders in these cases.

In the recent case entitled Cass County Joint Water Resource District, v. Cash H. Aaland, Larry W. Bakko and Penny Cirks, the North Dakota Supreme Court rules in the property owners favor on the issue of whether a Water District had the authority to enter upon the owner’s property prior to filing a condemnation case, as part of a flood diversion project.  In this unique factual situation, the Water District had previously been granted access to the owner’s property for sixteen and one-half months under a North Dakota right-of-entry statute to conduct examinations, surveys and mapping. However, after its initial right-of-entry had expired, it sought to extend the right by negotiating with the property owner for easements to install permanent survey monuments in order to conduct geomorphic examinations. When those negotiations failed, instead of seeking to condemn the easements, it sought an extension of its previous occupancy of owner’s property, using the same right-of-entry statute, for an additional nineteen months, bringing the total occupancy period to thirty-five and one-half months. In ruling that the right-of-entry statute did not authorize such an expanded and more invasive use of owner’s property, the North Dakota Supreme Court reversed a lower court decision allowing the entry to occur. The case is helpful in terms of its discussion of other state cases addressing pre-condemnation right-of-entry issues.