By Cori Badgley

In Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783, Konstantine and Alexandra Skoumbas claimed that damage caused by a storm drain, a portion of which was owned by the City of Orinda (“City”), amounted to a physical taking of their property. Agreeing with the City, the trial court granted the City’s motion for summary judgment on the grounds that a taking could not have occurred where the City did not own the entire storm drain. The Court of Appeal, First Appellate District reversed the trial court’s ruling and held that the fact that the City only owned a portion of the storm drain did not preclude the conclusion that a physical taking occurred. Instead, the court ruled the question is “whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.”

The City owned a catch basin and the first forty feet of drain pipe attached to the catch basin. However, according to the City, it did not own any of the drain pipe below the first forty (40) feet. This drain pipe discharged surface water near the uphill border of the Skoumbas property, and according to plaintiffs, the discharge caused substantial erosion and damage to the property. Plaintiffs brought suit against the City on the grounds of trespass, nuisance, and physical takings.

Since this involved a summary judgment motion brought by the City, the court was merely concerned with whether there were any triable issues of fact remaining in the case. According to the City, a physical taking could only occur if the City owned the entire pipe, and therefore, since the City owned merely a portion of the pipe, there were no factual issues left to dispute and the City wins. 

The court of appeal denied the City’s motion, finding that there were triable issues of fact still left to be decided. The court held that “the City’s ownership and control of a portion of the drainage system makes the City potentially liable for damage substantially caused by the City’s unreasonable diversion of water through the City-owned portions of the system.”

Takings cases alleging that water flowing onto plaintiff’s property constitutes a physical taking differ from other physical takings cases. When the plaintiff has alleged a physical taking due to water flow, the plaintiff must show that the public agencies:


. . . conduct posed an unreasonable risk of harm to the plaintiffs, and that unreasonable conduct is a substantial cause of the damage to plaintiff’s property. The rule of strict liability generally followed in inverse condemnation is not applicable in this context. (Citing Locklin v. City of Lafayette (1994) 7 Cal.4th 327.)


In applying this rule, the court found that “it is immaterial that the City may not own the entire section of drain . . .” The court ruled that partial ownership is not a complete defense to a taking caused by surface water. Instead, this case must go through a factual evaluation related to the reasonableness of the City’s conduct. Since that issue could not be decided on summary judgment, the court denied the motion, potentially forcing the City to go to trial or settle with the plaintiffs.


Cori Badgley is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.


The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.