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My First Experience with Inverse Condemnation
Source of Title Blog
June 25 2017

Last week I wrote about inverse condemnation: The Supreme Court of Virginia Examines the Limits of Inverse Condemnation.  It reminded me of a client I had shortly after I started practicing law, Yetieve.  She was in her late 70's and she was taking care of her husband who had dementia.  The last thing she needed was to be forced from her home, but after an unfortunate series of events they had to move. A corner of her home was sinking into a 12 foot deep crater and the roof was starting to crack -- it wasn't safe to stay there.  What had caused it, and who was responsible?  Well, that is an interesting story. 

On Yetieve's first visit to my office, she told me that there was an old drainage tile that ran under her home.  It had been causing problems for years and she had called the City engineer's office many times.  The City investigated and determined that it was a private drain installed by the developer and the City didn't have an easement for it.  Thus, according to the City they were not responsible for maintaining it.  It would have been expensive to fix, or reroute it around her home.

The drainage tile eventually caused damage to the basement floor and when Yeteive called a contractor to fix it.  The contract claimed that he went to the City engineer's office and he was told that the tile was no longer in use and was abandoned years earlier.  So, when he poured new concrete to fix the basement floor, he filled the broken tile with concrete.  Then... it rained... and it rained hard. 

Yetieve's basement floor heaved up several feet and the basement filled with water. When it finally broke out of the basement, it eroded a huge crater around the back corner of the house.  It was about 20 feet in diameter and 12 feet deep.  I thought that someone dug that pit trying to find the tile in an attempt to fix it, but Yetieve told me that it was caused by erosion from the water draining from her basement, and from water continuing to run out of the tile.  

Anyway, she insisted that the City was aware of this problem, from her numerous calls, and that it should be held liable.  I was a relatively new attorney and I didn't have much experience suing municipalities.  I remembered from law school that they are immune from certain suits for negligence.  So I did what I felt was the responsible thing - I referred her to another lawyer with more experience.  

A couple of weeks later, Yetieve came back to my office.  Once again, she asked for my help.  She didn't have much money - and I don't think anyone else was interested in taking on a complicated pro bono case against the City.  It was with a heavy heart that I told her I just didn't know where to even start with this kind of case.  I didn't have the experience to sue the City for negligence.  

But, a couple of days later, I called her and asked her to come back in to meet with me.  I told her that I had an idea, and with her permission I wanted to follow up on it.  I started by sending a letter to the contractor demanding that he put his insurance carrier on notice, then I called the City.

I started by calling someone I knew and I found out that Yetieve was well known. She had, as she told me, called the City many times over a period of a few years. I was told that everyone wanted to help her, but the City didn't have the budget to fix all of the crumbling infrustructure - and particularly here, where it was not even a City drainage tile.

The contractor's insurance carrier called me and said that they were going to hire an engineer to inspect the problem.  Soon, I was contacted by the engineer who confirmed what I had suspected.  The drainage tile was a private line installed by the developer, but at some point the City had tied into it somewhere "upstream."  According to the engineer, about 10 blocks of runoff was running through the broken tile under Yetieve's home.  

I was ready to meet with the City.  I called and scheduled an appointment with the law director's office and someone from the engineer's office who was familiar with the situation.

At the meeting, I was told that everyone really felt bad for Yetieve, but because this was a private line the City wasn't responsible for maintaining it.  Even if they were responsible for maintaining it, the City was immune from negligence suits.  

"I don't know much about negligence," I said. "But, if I have to sue the City, it won't be for negligence - it will based on inverse condemnation."  I didn't have much experience with condemnation actions, inverse or otherwise, but it was a very interesting concept that I remembered from law school.  Being a real estate law geek, I tend to remember these kinds of things.  

"I believe that the City took an easement when it connected the storm sewer lines to that private line and directed all of the City's runoff water from ten blocks under Yetieve's property.  The City already has an easement, it just hasn't paid her 'just compensation,' yet."   

It was creative.  And it was well received.  The City engineer wrote a strongly worded letter placing the blame on the contractor.  The City investigated and determined that the contractor never checked the records as he claimed.  Once the insurance company received it, they offered to buy Yetieve's home and compensate her for the personal property that she lost when the basement flooded.  Then, they paid to demolish the house, fix the tile, and plant grass on the vacant lot.  

Yetieve and her husband were able to move into a condo.  She was very happy with the outcome and although I told her there was no charge for my services, she insisted on giving me a little something for my time.  

Shortly thereafter, Yetieve insisted on formally giving the City an easement so they could maintain that line.  She didn't even ask for any money from the City; she just wanted to make sure there was an easement so nothing like this would happen again.  

Sadly, just weeks after she signed the easement, Yetieve passed away.  I will always remember her as one of my favorite clients, who brought me one of the most interesting legal issues I have been involved with.