The Mother’s Day Flood of 2006 caused an enormous amount of damage in New Hampshire. One of the damaged properties, owned by the plaintiff, sits along Interstate Route 95 in Seabrook. After the flood, the plaintiff sued the State of New Hampshire claiming that the design and construction of that portion of I-95 and a culvert running underneath it had caused water to pond on the property. Eventually, the water receded, but it damaged the plaintiff’s building and temporarily rendered the property unusable due to the flooding.
At issue was whether or not the State had committed a “taking” of the plaintiff’s property. Also called inverse condemnation, it occurs when the government substantially interferes with or deprives a person of the use of his property, in whole or in part, without formal eminent domain proceedings to compensate the owner.
First, the Court addressed whether the temporary flooding of the real estate was a taking. Takings of real estate are compensable in New Hampshire if the plaintiff proves that (1) the government either intended to invade a protected property interest or acted so that the invasion was the direct, natural or probable result of the activity rather than an incidental or consequential result; and (2) the interference with the plaintiff’s property rights were substantial and frequent enough to rise to the level of a taking. The Court focused on the second factor in this case. Evidence indicated the flood was a rare event “not proved to be inevitably recurring,” and, thus, it was not significant enough to be an unconstitutional taking.
The plaintiff also claimed that the flood damage in excess of $2 million to personal property located on the premises was a taking. The Court noted that some other states allow compensation for the inverse condemnation of personal property (as opposed to real estate). Without deciding whether or not such a claim could be recognized in New Hampshire, the Court held that, even if it could, this case did not qualify. The states which recognize this claim “preserve the distinction between compensable takings and mere consequential injuries, even for the total destruction of personal property.” In this case, the governmental conduct at issue—the construction of I-95—was not an intentional invasion of the plaintiff’s property. Therefore, the damage was consequential and could not be considered a taking.