The problems are discussed of inverse condemnation cases relating chiefly to water damage cases. Some contend that the inverse condemnation action is merely a procedural device for collecting certain kinds of damage that would have been compensable in the original condemnation proceeding, had the state seemed fit to pay. However, not all inverse claims cover damage that would have been compensable in the original condemnation action. Some tendency is evident to look at inverse condemnation action as a means of taking care of new forms of damage as they develop. The following approaches used to determine the liability for claims that have arisen in the probable damage category are discussed: tort, property, nuisance, and eminent domain. The point of view in Bauer v. Count of Ventura is discussed. The liability is placed on the failure to take additional steps protective of the plaintiff. The necessity of balancing the cost of protection against the risk of harm requires a weighing of utilities, belying the simplicity of the deliberate negligence analysis. The doctrine of sovereign immunity is being relinquished in Arizona, California, Wisconsin, and other states suggesting recourse to tort, liability as the basis for handling inverse claims. Eminent domain doctrine is reviewed to provide a more satisfactory basis for inverse liability. Inverse condemnation seems to rest on the role of eminent domain in under-writing the burden of loss that public improvements place on private land owners. It is concluded that inverse action has a role to play as a dispenser of equity, but responsibility lies with the courts to draw consistent and clearly explained lines between cases in which compensation should be paid, and cases in which it should not.
Abstract