Daily Development for
Friday, October 31, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EMINENT DOMAIN; INVERSE CONDEMNATION: Township's construction of an underground concrete culvert to channel existing natural waterway is not a trespass and not a taking, notwithstanding the fact that existence of culvert makes lot virtually unbuildable.

Pinkowski v. Township of Montclair, 691 A.2d 837 (N.J.Super. 1997).

The facts here make a good Halloween nightmare.

Seventy years ago the township constructed a concrete culvert six feet wide at a level three feet below the surface of the lot in question. The purpose of the culvert apparently was to carry water as part of a natural stream into flood drains that were located along the boundary of the property. The culvert only traversed a portion of the lot, but later owners sold that very portion as a separate lot to the plaintiffs here. For purposes of the case, the court assumes that the original owners did not acquiesce in the construction of the culvert. It may be that they were wholly unaware of it.

The culvert was not the subject of any recorded easement or other document. Its presence made construction on the lot impossible. The lot sold for $80,000, and the removal of the culvert would have cost around $250,000. Although owners' title insurance company reimbursed owners for the purchase price of the lot, took title to it, and became subrogated to the owners' rights, owners sought additional damages from township.

Held: For a variety of reasons, none of the plaintiff's causes of action would succeed. Of particular note was the court's conclusion that there was no trespass, and hence no inverse condemnation, because the culvert followed the natural flow of the stream and owners of real property in New Jersey take property subject to such natural flow. Apparently associated with the "natural flow" concept in New Jersey is an implied easement in favor of other riparian owners for flow maintenance projects. The court indicated that the township here was a riparian landowner and apparently assumed that the culvert was a proper "flow maintenance" activity.

Of course, the municipality might negligently design or locate such flow maintenance projects, but such actions would sound in tort, not inverse condemnation, and were actionable only if cognizable under the state tort claims act. For a variety of reasons, the court denied the tort claims act claims.

The court went on to point out that because the culvert was part of the natural flow of the stream, its presence did not constitute an "encumbrance" on the title. Apparently it was providing guidance to future courts that this kind of problem probably wasn't compensable under the title policy anyway. (In a footnote it stated that its opinion should not void the recovery the plaintiffs already had received from the title insurer.) Further, the court's reasoning eliminated any claim that the culvert violated the deed covenants.

Comment 1: If the immediate sellers of the property had actual knowledge of the culvert, they probably had the duty to disclose it as a latent defect.

Comment 2: This special easement appears to be part of the New Jersey natural flow theory of riparian water rights. It is not clear whether the court intends to treat the water in question as a resource or a nuisance. Many other states have adopted a different "reasonable use" theory for treatment of riparian water as a resource, and some variant of the "common enemy" theory or "reasonable rights" theory for treatment of riparian water as a nuisance.

Comment 3: The notion that a six foot wide concrete culvert is nothing more than a reasonable working out of the natural flow expectations of neighboring landowners strikes the editor as somewhat bizarre, but maybe folks in New Jersey understand this better.

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