Abstract
I will discuss taking as it pertains to a 356 acre fruit orchard owned by Johnny Appleseed. Mr. Appleseed’s orchard is located along a river frontage that is four miles downstream from a dam erected in the 1930’s by the state government. In 1996, the area experienced increased precipitation. By the spring, an emergency inspection of the dam by engineers concluded that water must be released or the valley could suffer a catastrophic flood. The engineers acknowledged that releasing the water in the recommended manner would cause some limited flooding. As a result, Mr. Appleseed’s fruit orchard was flooded and he lost his crop for that year and many trees on his property were permanently destroyed. I will present my argument that this temporary flooding was a taking as defined by our text and was done so under eminent domain. When a property is taken in this manner the owner is justly compensated for the loss according to the Fifth Amendment to the United States Constitution.

Keywords: eminent domain, taking, temporary flooding

The practice of taking by eminent domain is deeply rooted in history long before it was written about in the Fifth Amendment to the United States Constitution. The term itself was taken from the legal treatise De Jure Belli et Pacis, which was written by Hugo Grotius in 1625. Grotius, whose various texts are considered the foundations for international law, defined the power as follows:

The property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property. (Randolph, 1894)

In this scenario, we’ve already established that a ‘taking,’ as defined by our text, is present. Taking is defined as a seizure of private property or a substantial deprivation of the right to its free use or enjoyment that is caused by government action. As maintained by the Fifth Amendment to the Constitution of the United States, just compensation to the owner must be given. (Lawyers.com, 2001) In October of 2012, the United States Supreme Court heard oral arguments of a similar nature to Mr. Appleseed’s situation.

The case arose from the management of Clearwater Dam by the United States Army Corps of Engineers. The Corps followed a water control plan under which it released water from the dam at rates depending on the season. Between 1993 and 2000, however, the Corps deviated from this plan at the request of farmers, by releasing water during a period that extended into the timber-growing season of the Dave Donaldson Black River Wildlife Management Area, which is owned and managed by the Arkansas Game and Fish Commission, an Arkansas state agency. The Commission sued the United States, arguing that the temporary flooding of its Management Area, and consequent damage of valuable timber, constituted a taking of property for which it was entitled to compensation under the Fifth Amendment's Takings Clause. The Court of Federal Claims ruled in favor of the Commission and awarded it $5.7 million for the lost timber and the cost of reforesting. The ruling was reversed on appeal by a divided panel of the Federal Circuit, on the basis that there could be no takings claim unless the flooding was “permanent or inevitably recurring.” (Wikipedia, 2014)

Before their decision, temporary flooding was not considered taking. However, this precedent applies here as well. Mr. Appleseed’s property was also temporarily flooded and he suffered similar agricultural losses common when a spillway and flood gates release. (Arkansas Game and Fish Commission v. United States, 2012) Arkansas Game and Fish Commission v. United States, a recent decision by the Supreme Court of the United States, held that it was possible for government-induced, temporary flooding to constitute a "taking" of property under the Fifth Amendment to the U.S. Constitution, such that compensation could be owed to the owner of the flooded property. (Arkansas Game and Fish Commission v. United States, 2012) Similar to the Supreme Court’s decision in the Arkansas Game and Fish Commission’s, I assert that Mr. Appleseed is owed just compensation. As indicated by the definitions of taking, just compensation is awarded to owners when their property is taken by the government or state agencies through eminent domain. (Klayman, 2013) According to the Arkansas Game Supreme Court case, one should apply the rule of law for physical taking and look at it as the Court of Federal Claims did. Since it did result in substantial intrusion on Mr. Appleseed's property the Just Compensation Clause is self-actuating and there should be just compensation. (Arkansas Game and Fish Commission v. United States, 2012) Mr. Appleseed should be awarded compensation (fair market value) to replace said damaged property. As indicated by an article in the Michigan Bar Journal, “the change in value must be determined by accounting for all factors and possibilities that might result in a decrease in value . . . the change in value must be determined by accounting for all factors and possibilities that might result in a decrease in value.” It would be a reasonable way to determine compensation. The agency responsible for the damage to Mr. Appleseed’s property would have factual and unbiased information on which to base the compensation. It would be feasible for both the agency and Mr. Appleseed to request an appraisal of the property. The argument could also be made that the trees in the orchard are fixtures on the property. Mr. Appleseed could attempt to seek compensation for the fixtures and not just compensation for his real estate. It would be a bit of a stretch but any equipment used to maintain the orchard might be considered a moveable fixture. One could argue that Johnny could have flood insurance, and that the flood insurance would be responsible for covering the damages. Unfortunately, “The Reform Act also applied flood insurance requirements directly to the loans purchased by the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) and to agencies that provide government insurance or guarantees such as the Small Business Administration, Federal Housing Administration and the Veteran’s Administration. However, Congress did not make Farmer Mac subject to flood insurance requirements.” (FCA Examination Manual, 1998) As I previously mentioned in week nine’s discussion question, “I think that the owner should receive compensation for the property that they are losing – whether it’s due to the local government needing to use the land for something or because the local municipality needs to destroy the structure because it’s outdated and unsafe. I think by providing compensation, the local government generates goodwill for themselves. Eminent domain gets a bad rap. When I hear it, I think it’s a negative thing. . . If a business or residence(s) around Johnny’s property saw that he was treated fairly and received compensation, maybe they would be amenable to relinquishing their property.