Sewer operators often use pressurized water to clean their mains, and on rare occasions this causes messy sewer backups into adjacent homes. One such unfortunate homeowner argued that the backup was a taking of her property that required just compensation. In a May 8 decision, the Oregon Supreme Court decided that the sewer backup was not a taking, because the government did not intend the backup, nor was it a natural and ordinary consequence of cleaning the sewer with pressurized water.
The court ruled that to show a taking, the plaintiff must show that the government intentionally undertook its actions and that the inevitable result of those actions, in the ordinary course of events, was the sewer backup. Thus, if a plaintiff's best evidence is that the invasion was a less than certain consequence – such as a conceivable, possible, or plausible outcome, that is not enough to demonstrate the intent necessary for a takings claim. Where a sewer backup is caused by error, accident or inadvertence, a homeowner may claim negligence, but not a taking.
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