Eminent Domain & Taking Issues

New Hampshire Supreme Court Rules That Lowering Pond’s Water Level Not a Taking of "Constitutional Dimension"

“Eminent domain” is defined as the power vested in a sovereign to take, to authorize the taking of, or to damage, the private property of owners without their consent for a public purpose upon the payment of just compensation. Think, “Your yard will now become a public opera venue”.

“Inverse condemnation”, which is well-established in North Carolina, allows that a landowner may initiate an action to seek compensation for a taking whenever his property is taken for a public purpose though no declaration of “eminent domain” power has been made by the sovereign. In English, it is a device that forces the sovereign–a local government, e.g.–to exercise its eminent domain power even though it may have no desire to do so. Think, “We didn’t turn your yard into an opera venue, but we did turn the space next to your yard into an opera venue and you’re now able to enjoy this season’s ‘The Rake’s Progress’ for free. Over and over again. Nevertheless, quit bugging us for money and pay for your own move.”

The New Hampshire Issue
The plaintiffs, residents of Lyme, New Hampshire, own land abutting a pond that is controlled by the State. Additionally, the pond is part of a local park. The pond’s water level is controlled by a beaver dam, into which pipes have been placed to facilitate water level control. Some of those pipes are located on plaintiffs’ property, and were constructed without proper permits.

In 2008, the Town of Lyme changed its water release policy allowing the Town to, in effect, lower the pond’s water level. The Town did, ultimately, lower the pond’s water level.

In 2009, the plaintiffs filed a petition in equity and writ of mandamus alleging that the Town’s actions as to the pond’s water level violated certain state statutes, the public trust doctrine, the Town’s own zoning ordinance, and a conservation easement. Plaintiffs also alleged that the Town trespassed on private property, “created and maintained a private nuisance” and committed a taking.

The trial court granted the Town’s and State’s motions to dismiss, and an appeal to the New Hampshire Supreme Court followed. Professor Zalkin covers the decision here, as well.

Nuisance Claim
In December 2011, the Supreme Court affirmed the dismissal of the nuisance claim. On the bases that “[m]ere annoyance or inconvenience will not support an action for a nuisance”, and that “depreciation in land values ‘is ordinarily accorded little weight by the courts in nuisance cases'”, the Supreme Court determined that the allegations fell short of demonstrating that “the Town’s ‘activity [with regard to the pond’s water level] substantially and unreasonably interfere[d] with the use and enjoyment of their property'”.

Takings Claim
By far the more interesting claim, the Supreme Court nonetheless also affirmed dismissal of plaintiffs’ “inverse condemnation” action.

The Supreme Court concluded: “the allegations fail to support a claim that lowering the water level of Post Pond substantially interfered with or deprived the petitioners of the use of their property, in whole or in part”.

More pointedly, the Court scolded that “[m]erely alleging that the Town lowered the water level so as to ‘compromiss[] [their] access to water’ and ‘interfere[] with [their] enjoyment of [their] property’ is not sufficient to demonstrate that a taking of a constitutional dimension has occurred”.


As a procedural sidenote, the plaintiffs attempted to argue that what the courts had interpreted as a petition for a write of mandamus was, in actuality, a claim for declaratory judgment; presumably because the legal standard is lower, but that’s not clear. The Supreme Court gave this argument the “back of the hand”, however, and construed plaintiffs’ submission as a petition.

Mike Thelen is a lawyer in Womble, Carlyle’s Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.

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