No Taking Where Dam Removal Lowered Water Level Along Owner's Property
Property takings cases are pretty few and far between so land use professionals will be interested in today's case out of the Seventh Circuit Court of Appeals. Kreuziger v. Milwaukee County.
In the late 1930s, Milwaukee County built a dam on the Milwaukee River in an urban green space called Estabrook Park. In 2017, the County transferred the dam to the Milwaukee Metropolitan Sewerage District for the purpose of removing it. After the dam was removed, the water level immediately upstream fell by about 4 feet. A homeowner along the river sued the District and the County, claiming that the removal of the dam constituted a Fifth Amendment taking of his riparian right to the prior surface water level. The district court ruled in favor of the District and County, finding that the homeowner had no property right to the river remaining at its previous level.
On appeal, the Seventh Circuit upheld the ruling in favor of the District and County. The Court noted that in order to prevail on a federal takings claim, the homeowner had to show that the government had taken, either physically or by unduly onerous regulation, private property owned by the homeowner. Although the homeowner was a riparian owner (someone who owns land on a navigable waterway), those riparian rights are subordinate to and encumbered by the state's interest and authority to regulate and maintain its rivers and lakes for the benefit of the public (the public trust doctrine). As a result, the Court concluded that because the homeowner did not have a property right to a particular water level in the river, he could not have suffered an unconstitutional taking when the dam was removed.
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