US Supreme Court case from southeast Texas

[tvc184]

A Winnie land owner (and others) sued the State of Texas after they built IH-10 a few feet higher in order to help contain storm flooding. Sure enough a hurricane hit and flooded the land. The storm improvements worked!!

Unfortunately the state sacrificed several people’s properties in using the interstate highway as a dam. 

Richard DeVillier tried to sue Texas under our laws and Constitution and the US Constitution under the Fifth Amendment “taking clause” (eminent domain).

After a favorable ruling in the federal district court on the right to sue Texas directly, the Fifth Circuit Court in New Orleans overturned that ruling and said that the DeVlier had no authority to sue Texas directly. 

On Tuesday a unanimous US Supreme Court ruled that DeVillier and others had the right to sue Texas directly under Texas law and under the Fifth Amendment of the US Constitution. The case is now sent back down to the lower court.

DeVillier and others have not won their lawsuits as the case has not been decided on its merits at a trial. He still has to go to prove his case.

What they did win was a unanimous Supreme Court agreeing that he has the right to bring Texas to trial for taking his property with just compensation. 
 

[Bigdog]

Yeah I remember the pictures of the water piled up on the north side of the highway, it was bad.

[baddog]

1 hour ago, Bigdog said:

Yeah I remember the pictures of the water piled up on the north side of the highway, it was bad.

and I thought it was the concrete dividers used for construction lanes that caused the water to be dammed. I guess I missed something. 

[tvc184]

7 minutes ago, baddog said:

and I thought it was the concrete dividers used for construction lanes that caused the water to be dammed. I guess I missed something. 

That might have added to it but it said that they intentionally raised the roadway to help it act as a dam.

Even if it was the dividers and no intent, did the state “take” his property without compensation?

I think that it is interesting that a local landowner fought his case all the way to the US Supreme Court and won in a unanimous decision.

So while he has not won his case yet, he won the right to have his day in court and possibly heard by a jury.   

 

[tvc184]

26 minutes ago, baddog said:

and I thought it was the concrete dividers used for construction lanes that caused the water to be dammed. I guess I missed something. 

Looking back at the exact wording, it seems like you are correct and it was the concrete barriers that were the ultimate problem.

I mentioned it in my last comment, even if it was just the barriers, did Texas take his property?

I think a case like US v. Causby might go a long way to proving his case. Causby had an egg farm and during World War II, the US government started flying four engine heavy bombers for the war effort, low over his farm at full power. The extremely loud noise killed a bunch of his chickens and caused many of the rest of them to quit laying eggs. Even though he legally still on the property, he sued, saying that the federal government had effectively “taken” the use of his property from him.

The US Supreme Court sided with him, saying that for the purposes of the Fifth Amendment, the federal government had indeed taken away the use of his property. It wasn’t intentional but that didn’t matter.

It seems like this case would fall somewhere along those lines.

[baddog]

Just testing my memory banks. They fail me sometimes. I know they had problems with Harvey and Imelda. Let’s face it though, Harvey flooded people who had never been flooded before. He broke the flood plane maps. Not sure how blame can be laid. 

[LumRaiderFan]

3 hours ago, baddog said:

and I thought it was the concrete dividers used for construction lanes that caused the water to be dammed. I guess I missed something. 

Definitely the concrete barriers.

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[Bigdog]

3 hours ago, tvc184 said:

Looking back at the exact wording, it seems like you are correct and it was the concrete barriers that were the ultimate problem.

I mentioned it in my last comment, even if it was just the barriers, did Texas take his property?

I think a case like US v. Causby might go a long way to proving his case. Causby had an egg farm and during World War II, the US government started flying four engine heavy bombers for the war effort, low over his farm at full power. The extremely loud noise killed a bunch of his chickens and caused many of the rest of them to quit laying eggs. Even though he legally still on the property, he sued, saying that the federal government had effectively “taken” the use of his property from him.

The US Supreme Court sided with him, saying that for the purposes of the Fifth Amendment, the federal government had indeed taken away the use of his property. It wasn’t intentional but that didn’t matter.

It seems like this case would fall somewhere along those lines.

Yeah it was the barriers, no holes to allow the water through.   I think, his claim is loss of use of his property due to the flooding caused by the State.  That is how he is claiming Texas took his land.

[tvc184]

7 hours ago, Bigdog said:

Yeah it was the barriers, no holes to allow the water through.   I think, his claim is loss of use of his property due to the flooding caused by the State.  That is how he is claiming Texas took his land.

From what I read, the state intended for there to be no drainage. It was to act as a dam or levee just like the hurricane levee around Port Arthur.

It worked to perfection. 

In doing so, the water had to pile up somewhere.

 Like in Causby that I mentioned above, the Supreme Court ruled in that case that the federal government took his land by merely flying planes over it but low enough that the engine noise was disrupting.  

[TxHoops]

20 hours ago, baddog said:

Just testing my memory banks. They fail me sometimes. I know they had problems with Harvey and Imelda. Let’s face it though, Harvey flooded people who had never been flooded before. He broke the flood plane maps. Not sure how blame can be laid. 

I feel this.  
 

Really interesting case.  Probably more so to us than most any other place in the world. Honestly though, as someone who has heard eminent domain cases as an appointed “referee,” these poor people’s case(s) do seem pretty analogous.  

[tvc184]

20 hours ago, baddog said:

Just testing my memory banks. They fail me sometimes. I know they had problems with Harvey and Imelda. Let’s face it though, Harvey flooded people who had never been flooded before. He broke the flood plane maps. Not sure how blame can be laid. 

I’m going to go out on a limb and say……

Blame might come down to, would it have happened had the state not acted as it did. Intent probably doesn’t matter.

Having very little knowledge of the case except reading some court statements and legal websites, it seems that the state put up the concrete barriers with the intent for a to act like a dam and to keep the water on the south side of the highway. In other words, it worked as designed and flooded that land. In doing so however it protected the north side as an evacuation route.

Of course, it might go to an arbitrator or a referee or I guess it could legally go to a trial but I’m not sure. The question that I come up with is, would it have flooded anyway? For example let’s say the guy got 4 feet of water on his land but meteorologists and other experts in flood plains might agree that he still would have gotten two feet of water without the barrier. 

So did the state seize his land? Can the plaintiff show that had the barrier not been there, his land would not have flooded? If so he probably gets some kind of compensation.

If not…….

[baddog]

1 hour ago, tvc184 said:

I’m going to go out on a limb and say……

Blame might come down to, would it have happened had the state not acted as it did. Intent probably doesn’t matter.

Having very little knowledge of the case except reading some court statements and legal websites, it seems that the state put up the concrete barriers with the intent for a to act like a dam and to keep the water on the south side of the highway. In other words, it worked as designed and flooded that land. In doing so however it protected the north side as an evacuation route.

Of course, it might go to an arbitrator or a referee or I guess it could legally go to a trial but I’m not sure. The question that I come up with is, would it have flooded anyway? For example let’s say the guy got 4 feet of water on his land but meteorologists and other experts in flood plains might agree that he still would have gotten two feet of water without the barrier. 

So did the state seize his land? Can the plaintiff show that had the barrier not been there, his land would not have flooded? If so he probably gets some kind of compensation.

If not…….

Whichever way this goes is up to the courts. If he wins…. Fine. If he loses…fine. I live on Hillebrandt Road and it’s in a low spot. If a bad enough storm comes to SETex, they close the levee gate on Hwy 365 and flood the few to save the masses. It’s setup that way so we have to live with it. That’s government control of flood waters so his gripe falls on my deaf ears. Like I said, either way is fine with me, but I just don’t see it. 
As to whether he would have flooded anyway, I say yes with Harvey. It might have drained more quickly, however. 

[purpleeagle]

When I was Em Mgt Cor. In Newton Co.  there is a law even in the flood plain that if you build something on your property that causes more flooding or damage to another's property that you are responsible for that damage.    
come on state, you know better. 

 

[Separation Scientist]

TXDot did not "take" his property (eminent domain). It never left his ownership regardless of the weather. Compare that to Covid where Biden and the USA did do this to homeowners-landlords who were renting their property. They forced landlords to fully give their property to renters who glefully stopped paying all the while the taxes, obligations, etc. never stopped for the landlords. The landlords were fully prohibited from re-optaining their properties.   

[tvc184]

9 hours ago, Separation Scientist said:

TXDot did not "take" his property (eminent domain). It never left his ownership regardless of the weather. Compare that to Covid where Biden and the USA did do this to homeowners-landlords who were renting their property. They forced landlords to fully give their property to renters who glefully stopped paying all the while the taxes, obligations, etc. never stopped for the landlords. The landlords were fully prohibited from re-optaining their properties.   

That is yet to be determined in trial.

”Taking” in the Fifth Amendment doesn’t mean ownership, title changing hands, etc.

A government can “take” your property without “taking” your properties.

 That has been true.

 This issue is, did Texas take the property under the Fifth Amendment and subsequent Supreme Court rulings and not the dictionary definition of “taking”.

As always in the law, definitions matter. 

[Separation Scientist]

2 hours ago, tvc184 said:

That is yet to be determined in trial.

Lots of things are "determined" in trial that are flat out wrong. For example the NY Kangaroo Courts are working furiously to imprison Trump for the rest of his life, but there was no victim, no complaints, no losses, no nothing. However they very likely will "determine" Trump needs to be severely punished. Different situation but you see the point. 

No, TXDOT did not take anyones property. I agree with baddog, all of Chambers Co. flooded in Harvey, even if I-10 never existed. Regardless what the courts determine. 

[tvc184]

14 minutes ago, Separation Scientist said:

Lots of things are "determined" in trial that are flat out wrong. For example the NY Kangaroo Courts are working furiously to imprison Trump for the rest of his life, but there was no victim, no complaints, no losses, no nothing. However they very likely will "determine" Trump needs to be severely punished. Different situation but you see the point. 

No, TXDOT did not take anyones property. I agree with baddog, all of Chambers Co. flooded in Harvey, even if I-10 never existed. Regardless what the courts determine. 

But we aren’t discussing criminal charges which have nothing to do with a constitutional right.

The government doesn’t have to receive something in order to take it under the Fifth Amendment.

I have already said that the burden is on the land owner to prove that the highway caused the damage. If he can do so however, he will probably have a good case under the Constitution. 

[Separation Scientist]

Oh he will probably win. I just wonder about all the people south of I-10. Did TXDot "take" their land too? Do they get paid off too? Everybody flooded north or south. Everybody would still have flooded even if I-10 did not exist. 

[tvc184]

23 minutes ago, Separation Scientist said:

Oh he will probably win. I just wonder about all the people south of I-10. Did TXDot "take" their land too? Do they get paid off too? Everybody flooded north or south. Everybody would still have flooded even if I-10 did not exist. 

If the state can show that, they will probably win.

As far as the other people, they might have a case also.

 The Supreme Court doesn’t know any of the facts other than the State of Texas says that he doesn’t get his day in court. Their unanimous opinion was, yes the Constitution says that he gets his day in court.

I have no opinion one way or the other except on the Fifth Amendment and precedent.

 Within the last few days they ruled the same thing on a California city where the local government said that the Constitution basically doesn’t apply to them. Again a unanimous Supreme Court said, oh yes it does. 

[SmashMouth]

I think the guy has a valid complaint. He (and some of the others) aren't a bunch of loose cannons. They're just trying to defend what's theirs.

[LumRaiderFan]

1 hour ago, SmashMouth said:

I think the guy has a valid complaint. He (and some of the others) aren't a bunch of loose cannons. They're just trying to defend what's theirs.

Agree, I think he has a very valid case.

[tvc184]

I think it will be an interesting case and could potentially come up for appeal on a different constitutional point.

 The Supreme Court has ruled in the past that the government doesn’t have to take possession of property in order to take it under the meaning of the Fifth Amendment.  If they take away the enjoyment or use of the property, it is no different than physically seizing it to build a highway for example.

In a lawsuit as opposed to a criminal trial, a person/plaintiff doesn’t have to prove something beyond a reasonable doubt but rather by a preponderance of evidence or “more likely” to have happened. Maybe it could be described as more likely yes than no or 51%-49%. 

”IF” it can be shown at a trial by a preponderance of evidence that Texas more likely yes than no caused the flooding with its engineering of the project, the people suing might have a case.

But….

Does that alone win the case under the Fifth Amendment taking clause?

I am not so sure.

In US v Causby the Supreme Court ruled that the US government took a man’s property by flying airplanes over it. It was a public airport lawfully leased by the US in WWII and used to fly heavy bombers from it. Causby had an egg farm and the extremely loud noise of some airplanes under full power and sometimes at night with a landing lights being so close, it bothered and scared the family and damaged his egg farm production. Some chickens died and some quit laying eggs due to the extreme disturbances and lights at night. The Supreme Court ruled in Causby’s favor saying that the US had taken away the enjoyment and use of his land even though they didn’t physically seize it. The use of the land was hampered and that was enough for the taking clause under the Fifth Amendment. So in the IH-10 case, did Texas take away the use or enjoyment of the property? 

A point of Causby was that the military bombers at a public airport was certainly for “public use”. The planes were public/taxpayers’ and the airport and lease were taxpayers’ property so the “public” definitely used it  

My question in this lawsuit against Texas, even in they can prove the damage, was the damage (like in Causby) for “public use”? If not would it then not be a Fifth Amendment case but rather a state law case?

 If Texas law denies such a lawsuit under state sovereignty and the families can’t prove a Fifth Amendment case of “public use”, could they prove the damages but still lose the case under state law?

I haven’t read that anywhere and just thinking out loud. I could be way off base.

But I think it could be interesting…..