• Key point: Church property that is damaged or destroyed by a broken water or sewer line may constitute a “taking” of property requiring the state to provide the church with “adequate compensation.”

• In an important decision, a Texas appeals court ruled that a church should be allowed to sue a city as a result of damages caused by a broken sewer line. A Baptist church sustained serious damages after it building was flooded with raw sewage from a city-owned sewer line. The church filed a lawsuit seeking money damages against the city. It claimed that the city’s actions constituted a “taking” of the church’s property that warranted payment of “adequate compensation.” The Texas Constitution specifies that “no person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made unless by the consent of such persons.” The city argued that it was protected from any responsibility for the church’s damages on the basis of the doctrine of “sovereign immunity”. Under this doctrine, government entities cannot be sued unless they have specifically waived immunity. A trial court dismissed the church’s lawsuit on the basis of sovereign immunity, and the church appealed. A state appeals court ruled that the case should not have been dismissed, and ordered the case to proceed to trial. It noted that the standard to be applied in determining whether or not a city must pay adequate compensation for “taking” or damaging private property is whether “the state intentionally performed certain acts in the exercise of its lawful authority … which resulted in the taking or damaging of [the landowner’s] property … and which acts were the proximate cause of the taking or damaging of such property.” The court also concluded that the city may be liable for the church’s property damage on the basis of nuisance. It observed: “Although a municipality is generally immune from liability for its torts in the performance of a governmental function, it may be liable for the creation or maintenance of a nuisance in the course of the non-negligent performance of such functions.” The court, in referring the case back to the trial court, concluded: “Because fact questions exist about what caused the backup, whether the city intentionally or negligently failed to correct the cause of the backup, whether the condition rose to the level of a nuisance, whether the city intended to take acts which resulted in the taking, damaging, or destruction of any interest in the property, the city … was not entitled to summary judgment.” Churches that sustain damages to their property as a result of broken water or sewer lines should recognize that they may be able to recover monetary damages from their city government on the basis of either a “taking” or damaging of their property or the law of nuisance. Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826 (Tex. App.—Waco 1993).[PCL11L]

See Also: Eminent Domain

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