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The Utah Constitution provides that private property shall not be taken or damaged for public use without just compensation. (Article 1, Section 22). The protections from the "or damaged" clause have been interpreted to require the payment of just compensation in at least three settings:

1. Where the use or value of some fundamentally protected aspect of property ownership is substantially harmed by some action taken beyond the property;
2. Where a nuisance, such as noise and vibration, on adjoining lands interfere with the peaceable enjoyment of private property; or
3. When there is a physical entry on the property, but the entry is temporary and does not involve a permanent occupation. In this last setting, which often applies to flooding situations, compensation has been required even where the physical entry is not permanent and continuous. It is sufficient to claim a taking if the entry is "inevitably recurring," where the loss of use or diminution in value is permanent. Where that flooding that fits this description is the result of a government action, then a taking claim could be upheld. (See Just Compensation)

All of the following points must be alleged if a taking arising out of a flood is to be found:

1. The flooding resulted from a government action, the action of a private party or contractor acting under government direction or mandate;
2. The flooding has substantially and permanently intruded upon private property or otherwise affected the use and/or value of a protected interest in private property;
3. The flooding is permanent, continuous, or inevitably recurring;
4. The action that created the flooding was taken to further a public purpose and was not just a negligent and unnecessary action not essential to the public purpose; and
5. Just compensation was not paid.

If you are experiencing recurring flooding on your property caused by the action of a government agency, the OPRO can assist you. Mediation or arbitration are means to resolve such disputes in a manner that is fast, fair, and a lot more friendly than legal action.

These guidelines are provided by the Office of the Property Rights Ombudsman in an effort to provide better understanding of constitutional private property protections and the land use regulation process. They are not meant to constitute legal advice. They simplify and broadly generalize complex issues of law. Questions should always be directed to your attorney for specific advice. Suggestions and comments are always welcome.