Posted by: Patricia Salkin | January 10, 2012

NH Supreme Court Holds Lowering of Pond Water Level did not Constitute a Taking of Property

The plaintiffs own land abutting a pond that is controlled by the State.  Additionally, the pond is part of a local park, including a beach and playing fields.  The pond’s water level is regulated by beaver dams.  In order to stabilize the water level of the pond, pipes were put into the beaver dams, and some of these pipes were inserted on beaver dams that were on the land of the plaintiffs and in other instances were within the setback to the plaintiffs’ land.  Two of these pipes where constructed without the required permits and notice was not provided to the plaintiffs.  Subsequently, the Town breached additional beaver dams and lowered the aforementioned pipes to lower the water level of the pond by almost two feet. The reduction in water level resulted in more beach area for the park, and also lessened the financial cost of improving the park’s playing fields.

Among other claims, the plaintiffs alleged the acts of the State and the Town of Lyme resulted in a taking of their property.  The Supreme Court began by stating that it would construe the case as a matter of inverse condemnation.  With respect to the taking allegation, the court looked to more than the property itself, also taking into account one’s use and enjoyment of the property.  Thus, interference with the use or enjoyment of the property may constitute a taking, but would it would need to be more than a mere annoyance and would need to be direct, peculiar, and of sufficient magnitude requiring the burden to be borne by the entire public, and not just the land owner. 

In addressing the merits of the claim, the Supreme Court found the allegations in the writ were not sufficient to state a claim for a taking of the plaintiffs’ property.  Allegations that the lowering of the water level adversely affected the plaintiff’s access to the water and interfered with the use of the property did not support the taking claim because such allegations did not sufficiently allege that the lowering of the water level substantially interfered with the use or enjoyment of the plaintiffs’ property.  As such, the Supreme Court of New Hampshire affirmed the Superior Court’s ruling, finding there was no unconstitutional taking of the plaintiffs’ land.

Morrissey v. Town of Lyme, 2011 WL 6188508 (NH 12/8/2011)

The opinion can be accessed at:

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