LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

A Gross Invitation to Abuse: No Injunction Against Deliberate Gov't Flooding of Property w/out Prior Taking

This is one of those cases where you just shake your head.

Brevard County is admittedly flooding a landowner's property for mosquito control purposes without permission and without commencing an eminent domain action. The landowner sued for injunction and also for inverse condemnation should the flooding be allowed to continue.

The trial court held, and the 5th DCA affirmed, that because the inverse condemnation remedy is available, the landowner has a remedy at law and is not entitled to a temporary injunction against the flooding. The case is DiChristopher v. Bd. of County Commissioners, here is the opinon. It also noted that the public interest is not served by the injunction, because the mosquito control program promotes public health.

First, it's just wrong that the government gets to commit an intentional tort and can't be stopped simply because somewhere down the line a legal remgy MIGHT be available. Trespass is a tort, damages are available for past trespasses, but that doesn't stop a court from being able to order enjoin future trespasses. But more importantly, what we're seeing is the government just going ahead and flooding this land and saying "so sue me." THEY ADMIT THAT THEY ARE COMMITTING THIS TORT AND TAKING, and refuse to do the LEGALLY REQUIRED act of eminent domain. And what happens now if the trial court later finds that because the flooding is periodic, it's a trespass, not a taking? (unlikely, but possible). Does the injunction count get reinstated?

SO - what we have now is a new claim by the government that even absent an emergency, act of war, etc., they can invade and take anyone's property anytime they want, and the only response available is a multi-year, complex suit in inverse condemnation -- no one can order them to remove themselves or do the right thing by initiating a takings claim.

The problem is clear: absent the availability of injunction to restrain the government from trespassing (or even siezing) property, what reason does the government have to bother with eminent domain? Hell, let's just start building roads, etc., over people's property and see who bothers to sue! Maybe we can get away with getting a bunch of free land, and maybe courts will hold that in inverse condemnation you don't get business damages and other pesky substantive and procedural rights that go along with eminent domain actions (like 12 person juries).

And folks wonder why there's such a "property rights" movement in this country.

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.