Expert: A. Hall - 9/21/2008

Question


The city & county where I reside, (Kanab, Kane County, Utah) improved the road in our primarily rural area. What was once a completely unimproved dirt/gravel road, now has been built up by some two feet, with deep drainage ditches on each side in addition to being "chip sealed".

The problem is that now those drainage ditches channel all the water from the top of the road, directly onto our property at the end of this road. Where the road stops running straight and turns 90 degrees on to the adjoining road, an 18" pipe was put down across it before they built it up and sealed it. That pipe empties directly onto our lot. After the first rain, the water from the drainage, flooded our parking area, created a 30' x 8' x4' deep sinkhole taking the 300 gallon propane tank with it.

The nutshell would be that there was never any noticeable pooling before as the water dissipated in all directions as it made its way down the 1/4 mile road. Now several “rivers” run through our lot and flood our parking and outbuildings.

After bringing this to the county, they came out and as a solution, extended the pipe 12’ to 15’ into our property leaving a 4’ deep hole, 2’ hill, cutting through our fence. Now this huge pipe protrudes onto our lot in plain view from the street, that area of the lot is unusable, and after this past rain, the runoff is the same.

So now we not only continue to have flooding, the “fix” is an eyesore and a major factor in the property’s present and future value.


Answer
You might have recourse against the government under two legal theories:

1. This may be considered a "taking" (see http://en.wikipedia.org/wiki/Taking) for which you should be compensated by the government.

2. If the government was negligent, you might have a claim under the Federal Tort Claims Act.

Either way, you would have a challenge ahead of you, because these case are not easy to win. You must hire an attorney and the government has its own attorneys.

However, a viable threat from an attorney might cause your city/county to settle with you. I suggest you ask an attorney in your area about it. Maybe your legal fees would be limited to the attorney sending a letter to the city and negotiating a settlement. Best wishes!