Real Estate & Property Law

Federal Circuit: 35k SF Government Borrow Pit On Your Property Not "Inherently Unknowable"

By Robert Thomas (inversecondemnation.com)

In 1999, without asking the owner's permission, the federal government constructed a 35,000 square foot "borrow pit" on a parcel in a remote corner of Texas. The owner did not learn about the government's activities until 2004, when a migrant worker who had crossed the property to access the Rio Grande told him about it. The owner visited the property in late 2004 and for the first time discovered the borrow pit.

In 2006, the owner filed an inverse condemnation claim against the United States in the Court of Federal Claims.  Over the owner's objection that he was unaware of the taking until the migrant worker told him about it in 2004, the CFC dismissed the claim because it was filed outside the six-year statute of limitations.

The Federal Circuit affirmed. The claim accrued on the date of the taking -- April 1999 -- but the owner asserted the accrual should be suspended because he did not know of the claim, and the injury was "inherently unknowable" because the property was remote (a 12 hour drive), access was cut off several times, and because the government's right of entry agreement did not note its intent to create the borrow pit.  The Federal Circuit rejected these arguments, holding:

[A] landowner will be deemed to be on inquiry of activities that are openly conducted on his property. Applying that principle to this case, it is apparent that the government?s use of the fill material from Mr. Ingrum?s property was an open and notorious act that put him on inquiry that he had a potential claim. By Mr. Ingrum?s own estimation, the borrow pit created by the government?s use of the fill material had a footprint of roughly 35,000 square feet. Mr. Ingrum concedes that if he had visited his property after the government performed the 1999 repairs, he would have discovered the pit because it was "in plain sight" and clearly visible from the road. Under those circumstances, the government?s actions cannot fairly be described as inherently unknowable.

Ingrum v. United States, No. 2008-5085 slip op. at 8 (Mar. 25, 2009).

Full post as published by inversecondemnation on March 27, 2009 (boomark / email).