Damage of personal property not unconstitutional taking

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The Indiana Court of Appeals has ruled in favor of a sanitary district in a suit against it alleging an unconstitutional taking of homeowners’ personal property after sewage backed up into their homes. The judges relied on a case from Nevada to support their decision.

Homeowners Katherine Farley and James Paul, along with other property owners, sued the Hammond Sanitary District after heavy rains caused sewage to back up in their basements. Summary judgment was granted in favor of the sanitary district on the homeowners’ tort claims. At issue in the appeal are only Farley and Paul’s tort claims and their claims for unconstitutional taking of personal property.

The two alleged in Katherine Farley and James Paul v. Hammond Sanitary District, No. 45A05-1008-CT-481, that the intrusion of the sewage into their homes interfered with their personal property without just compensation, violating Article 1, Section 21 of the Indiana Constitution – the Takings Clause. No Indiana court has addressed this issue on point because previous caselaw only dealt with real property, not personal property. The appellate judges relied on ASAP Storage Inc. v. City of Sparks, 123 Nev. 639, 173 P.3d 734 (2007), to affirm summary judgment for the Hammond Sanitary District on this claim.

In Sparks, property owners were barred from their homes for 48 hours by city officials due to a flood. Their personal property was damaged, and they sued under a similar clause under the Nevada Constitution. Ultimately, the Supreme Court of Nevada concluded that a brief interference with property rights didn’t rise to the level of compensable taking. The Indiana judges found in the instant case that the sewage backup only lasted for a short period of time – six to 12 hours in Paul’s case, and four days in Farley’s case, as she was out of town when it occurred but she cleaned up the basement as soon as she returned. Since it was brief in nature, it didn’t rise to the level of a compensable taking under the Takings Clause despite the harm to the personal property.

The COA split over the striking in part of Farley and Paul’s expert witness’ affidavit. The trial court struck two portions of engineer Michael Williams’ affidavit – that the sanitary district failed to properly clean its sewers, which led to accumulated obstructions that reduced carrying capacity and caused the backups; and that the district didn’t properly clean its sewers and keep them free of debris, which reduced capacity and caused the backups.

The judges all agreed that the trial court didn’t abuse its discretion in striking the first statement because Williams’ legal conclusion was not evidence. But the majority reversed striking the second disputed portion, finding that statement was based on his experience, education and review of evidence. Judge Nancy Vaidik dissented, believing the trial court properly struck this portion. She would affirm summary judgment for the district on this point.

The judges also found there to be a dispute of fact as to whether inadequate maintenance played a part in the sewer backups, and the sanitary district failed to establish its immunity. They reversed summary judgment on the issue of governmental immunity and negligence, and remanded for further proceedings.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

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