'It destroyed our crops, killed our animals, and caused untold damage'

The U.S. Supreme Court is being asked to take up the case of a Texas farmer whose land has been damaged by a state project that was intended to improve a roadway.

The problem? Every time there's any significant rain, the land belonging to farmer Richie Devillier, whose farm has been put, by the state, behind a dam-like structure used as a highway demarcation, traps runoff and kills his crops.

Officials with the Institute for Justice explain the request to the high court is to adopt the Pottery Barn rule – "if you break it, you buy it."

"It means that if you cause damage to someone else’s property, you are responsible for paying for that damage. And yet, the state of Texas argues that this basic tenet does not apply to state governments when they take private property for public use. Unfortunately, in direct defiance of decades of Supreme Court precedent, the 5th U.S. Circuit Court of Appeals agreed, and now the Institute for Justice (IJ) is helping a fourth-generation family farm appeal their case to the U.S. Supreme Court," the legal team explained.

Robert McNamara, deputy litigation director for the IJ, said, "There is not an asterisk next to the Fifth Amendment that says the government doesn’t have to pay just compensation if it doesn’t want to. The Supreme Court has repeatedly affirmed Americans’ right to just compensation is an inherent part of the Constitution. It cannot be ignored or circumvented by the government or the courts."

Devillier farms near Winnie, Texas, and "for as long as anyone can remember, the Devilliers’ land has never flooded."

Then in the early 2000s, the Texas Department of Transportation worked on a nearby highway, raising it and building "an impermeable concrete barrier down the median."

Now, any major storm floods the Devillier farm – and others.

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"When Hurricane Harvey hit the Houston area, countless acres of crops were ruined. For days their farmland resembled a lake. Innumerable cows and horses died—drowned, or just killed by the cumulative effects of standing chest-deep in water for days on end. The damage was enormous," the legal team said.

The state, meanwhile, has refused to pay damages, or to fix the problem it created.

Devillier said, "It destroyed our crops, killed our animals, and caused untold damage to our property. I don’t know if we’ll ever be able to farm this land again without worrying that we’ll lose everything in an instant. When we talked to the state, they basically said ‘tough luck'"

He said the Constitution provides the right "to be compensated for the damage done to our property."

In court, Texas demanded that the case move from state court to federal court, then demanded that the case be dismissed since federal civil-rights laws allow cases only against people, not states.

However, the IJ noted, "Courts across the country have held that, when it comes to takings, people do not need a law giving them a remedy. Instead, the Constitution, which guarantees 'just compensation' for takings, guarantees the remedy. Shockingly, though, the Fifth Circuit sided with Texas, holding that property owners whose land is taken by the state don’t have any federal remedy at all. The Devilliers’ claim did not exist at all."

So the case is moving to the Supremes.

"This case is about holding the government accountable and ensuring that the Constitution’s protections for property owners are respected,” said Scott Bullock, chief counsel.

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