5305820211_d844686e8bOn the final day of the November term, the Illinois Supreme Court agreed to hear Hampton v. Metropolitan Water Reclamation District of Greater Chicago. Hampton poses a simple question: should the Court overrule its 1948 decision in People ex rel. Pratt v. Rosenfield holding that temporary flooding caused by government action can never constitute a compensable taking?

Hampton arises from flooding which occurred following a heavy rainfall in the Chicago area in late July 2010. The plaintiffs sued the defendant Water Reclamation District, alleging that its control and management of the Chicago Area Waterways System was the cause of the flooding, which resulted in serious damage and/or destruction of their property. The plaintiffs purported to state claims under the Metropolitan Water Reclamation District Act (70 ILCS 2605/19) and the Takings Clause of the Illinois Constitution.

The defendant moved to dismiss. The Circuit Court granted the motion with respect to Count I under the Act. However, the Court denied the motion with respect to Count II under the Takings Clause, holding that the Illinois Supreme Court’s holding in Pratt had been effectively overruled by the U.S. Supreme Court’s 2012 holding in Arkansas Game and Fish Commission v. United States. The trial court then certified pursuant to Supreme Court Rule 308 the question of whether Pratt survived Arkansas Game and Fish Commission.

Division Five of the First District held that it did not. The court noted that although the plaintiffs did not invoke the Federal takings clause in their complaint, the Illinois clause was actually broader in scope because it expressly covers “damage” to property, not just a “taking” of it. Nevertheless, in Pratt the Illinois Supreme Court held that a property owner was not entitled to bring condemnation proceedings under the Clause where flooding allegedly occasioned by government conduct had receded, since the property owner could not allege that the invasion was permanent.

After reviewing the Illinois authorities, the Appellate Court turned to Arkansas Game and Fish Commission. There, the U.S. Supreme Court had found that although the duration of a physical invasion is a factor in determining a compensable taking, the mere fact that floodwaters had receded did not create an automatic exemption from a finding that a taking had occurred. The court held that because Pratt was based on the proposition that floodwaters could never result in a compensable taking, the Illinois Supreme Court’s decision in Pratt was effectively overruled by Arkansas Game and Fish Commission.

We expect Hampton to be decided in eight to ten months.

Image courtesy of Flickr by Tatters (no changes).