Flooding Takings Claims Require Foreseeable Government-Caused Invasion and a Government Possessory Interest in the Drain Easement

1. Introduction

This case arises from intermittent flooding affecting two adjacent residential lots owned by Willienard Banks (as trustee) and Aaron P. Jackson in the Chestnut Run subdivision in Bloomfield Township, Michigan. The plaintiffs alleged that a 2019 road-improvement project increased water flow into a drain running under their properties and that the drain’s broken/obstructed condition (sediment and needed repairs) contributed to the flooding and resulting odors and soggy yard conditions.

Seeking to avoid paying repair costs themselves, the plaintiffs sued Bloomfield Township, the Oakland County Road Commission, and various officials under 42 U.S.C. § 1983. They asserted federal and state takings claims and additional federal constitutional theories (procedural due process, substantive due process, equal protection, and § 1983 conspiracy). The district court dismissed for failure to state a claim, and the Sixth Circuit affirmed.

The key issues were: (1) whether the alleged flooding stated a plausible physical taking attributable to government action, including whether the flooding was intended or foreseeable; (2) whether the government’s alleged failure to maintain a drain located in an easement under plaintiffs’ land could constitute a taking when the government did not own or possess the easement; and (3) whether plaintiffs plausibly alleged alternative constitutional violations.

2. Summary of the Opinion

The Sixth Circuit held that the complaint failed to plead a plausible taking or other constitutional violation. As to the “road-improvement” theory, the court emphasized that takings liability for flooding requires that the invasion be the intended or foreseeable result of government action; allegations amounting to negligence are insufficient. As to the “failure-to-maintain” theory, the court concluded that the drain easement was private (not dedicated to the public and not possessed by the Township or County), so the government’s non-maintenance did not constitute a physical taking.

The court also rejected a regulatory-takings theory (no land-use regulation was identified), found the Michigan takings theory forfeited/undeveloped on appeal, and dismissed the due process, equal protection, and conspiracy claims for lack of state action, lack of conscience-shocking conduct, lack of a similarly situated comparator, and lack of factual allegations showing an agreement and an underlying unlawful act.

3. Analysis

A. Precedents Cited (and how they shaped the outcome)

• Chen v. Hillsdale Coll., 150 F.4th 735 (6th Cir. 2025)
  Provided the governing pleading standard on appeal from a Rule 12(b)(6) dismissal: plaintiffs must allege facts supporting a plausible theory of relief.
• O'Bryan v. Holy See, 556 F.3d 361 (6th Cir. 2009)
  Reinforced that conclusory allegations and legal conclusions cannot substitute for factual pleading.
• Ark. Game & Fish Comm'n v. United States, 568 U.S. 23 (2012)
  Anchored two essential propositions: (1) flooding can constitute a physical invasion capable of being a taking; (2) for such liability, the invasion must be tied to government action and be intended or foreseeable (not accidental in the negligence sense).
• Murr v. Wisconsin, 582 U.S. 383 (2017)
  Cited for incorporation of the Takings Clause against the States through the Fourteenth Amendment.
• Bruneau v. Mich. Dep't of Env't, 104 F.4th 972 (6th Cir. 2024)
  Supplied the critical limiting principle: negligent injury to property, standing alone, does not amount to a taking. The court relied on this to reject plaintiffs’ attempt to recast alleged governmental non-investigation or poor planning as takings liability.
• Sanguinetti v. United States, 264 U.S. 146 (1924)
  Served as the historical analogue: even where government works contribute to flooding, no taking occurs where the flooding was not reasonably anticipated. The panel used Sanguinetti to emphasize foreseeability as the dividing line between takings and tort-like negligence.
• Little v. Kin, 664 N.W.2d 749 (Mich. 2003)
  Controlled the easement-ownership inquiry under Michigan law: courts look to the text of the easement instruments. The panel used it to justify turning to the recorded covenants/plat/certificates to determine whether the drain easement was public or private.
• Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673 (6th Cir. 2011)
  Supported considering public records at the motion-to-dismiss stage. This undercut plaintiffs’ argument that the court could not consider the full plat/title documents pre-discovery.
• Montgomery v. Carter County, 226 F.3d 758 (6th Cir. 2000)
  Plaintiffs cited Montgomery’s “public purpose” standard, but the panel distinguished it: Montgomery dealt with a county claiming a road as its own. Here, defendants disclaimed any interest in the drain easement; without a plausible appropriation/possession, “public purpose” analysis was premature.
• Miner v. Ogemaw County Road Commission, 625 F. Supp. 3d 640 (E.D. Mich. 2022) and Miner v. Ogemaw Cnty. Rd. Comm'n, No. 1:21-CV-11192, 2024 WL 7015778 (E.D. Mich. Jan. 23, 2024)
  Plaintiffs’ reliance was rejected: the cited district court decision involved affirmative government maintenance on private property (not refusal to maintain), and in any event it had been vacated.
• City of Kentwood v. Est. of Sommerdyke, 581 N.W.2d 670 (Mich. 1998)
  Defined common-law dedication: it requires the owner’s intent to dedicate land for public use. Plaintiffs’ allegation that Bloomfield repaired pipes in 1999 did not plausibly establish that the private owner (Chestnut Run LP) intended dedication.
• McDonald v. Sargent, 13 N.W.2d 843 (Mich. 1944) and Marlette Auto Wash, LLC v. Van Dyke SC Props., LLC, 912 N.W.2d 161 (Mich. 2018)
  Addressed prescriptive easements: acquisition requires open, notorious, adverse use for the statutory period (15 years in Michigan). The panel found plaintiffs did not allege trespass/adversity and could not convert a single repair into continuous adverse use for 15 years.
• Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) and Penn. Coal Co. v. Mahon, 260 U.S. 393 (1922)
  Clarified the physical vs. regulatory takings distinction. The court used these cases to hold that plaintiffs pleaded (at most) a physical-invasion-by-flooding theory, not a regulation restricting use.
• AFT Michigan v. Michigan, 866 N.W.2d 782 (Mich. 2015)
  Noted that Michigan’s Takings Clause can be broader than federal law, but the panel treated the argument as forfeited because plaintiffs did not develop how Michigan law should change the analysis here.
• Phillips v. McCollom, 788 F.3d 650 (6th Cir. 2015) and Jackson v. Metro. Edison Co., 419 U.S. 345 (1974)
  Governed procedural due process and the state-action requirement. The panel found no plausible deprivation attributable to state actors given the private nature of the easement and plaintiffs’ own allegations tying flooding to broken private pipes/sediment.
• McIntosh v. City of Madisonville, 126 F.4th 1141 (6th Cir. 2025) and County of Sacramento v. Lewis, 523 U.S. 833 (1998)
  Set the “conscience-shocking” threshold for substantive due process. Ordinary infrastructure decisions and refusal to repair non-owned equipment did not approach that standard.
• Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365 (6th Cir. 2011)
  Required a similarly situated comparator for an equal protection claim; plaintiffs identified none.
• Marvaso v. Sanchez, 971 F.3d 599 (6th Cir. 2020) and Boxill v. O'Grady, 935 F.3d 510 (6th Cir. 2019)
  Defined § 1983 civil conspiracy and its elements (agreement + unlawful action). The panel found neither plausible factual allegations of coordination nor any underlying constitutional violation.

B. Legal Reasoning

1) Physical taking by flooding: causation plus intent/foreseeability

The court treated the plaintiffs’ primary theory as a classic flooding-as-physical-invasion claim under Ark. Game & Fish Comm'n v. United States. But it framed a key limiter: the government action must cause the invasion, and the invasion must be the intended or foreseeable result of that action. By emphasizing Bruneau v. Mich. Dep't of Env't and Sanguinetti v. United States, the panel effectively classified the complaint’s core allegations (failure to investigate whether the drain could handle additional water; minor road drainage changes) as sounding in negligence rather than takings.

Notably, the plaintiffs’ own expert report—quoted in the complaint—described the road project’s drainage changes as “minor” and identified the drain system as “defective” and in need of repair/cleaning. The panel used that internal inconsistency to conclude that the pleadings did not plausibly show foreseeable government-caused appropriation.

2) Failure to maintain: no government “taking” without a government possessory interest

The opinion’s second—and practically decisive—move was to tie government duty/attribution to property concepts: if the government does not own or possess the drain easement, its non-maintenance is not a physical appropriation by the government. Relying on Little v. Kin, the court examined the subdivision’s declaration of covenants, proprietor’s certificate, and plat (all treated as public records and/or incorporated by reference under Rondigo, L.L.C. v. Township of Richmond).

The documents characterized the “public utility easements” as “private easements,” and the drain easements were not shown as dedicated to the public (in contrast to roads explicitly dedicated to public use). The court therefore concluded that neither Bloomfield Township nor Oakland County had a possessory interest that could ground takings liability or due process state action.

3) Plaintiffs’ attempted workarounds: public purpose, dedication, prescription

• “Public purpose” (Montgomery): The panel held plaintiffs skipped a necessary step. “Public purpose” matters after a plausible appropriation is shown; it does not create an appropriation where the government disclaims any interest.
• Common-law dedication (City of Kentwood): A municipality’s past repair activity did not plausibly establish the private owner’s intent to dedicate. The opinion demanded allegations tied to the owner (Chestnut Run LP), not just government conduct.
• Prescriptive easement (McDonald; Marlette Auto Wash): A one-time repair was not plausibly adverse “trespass,” nor “continuous” for 15 years.

4) Regulatory taking: misfit theory

The court treated the complaint as alleging physical invasion by flooding, not a regulatory restriction. Although plaintiffs claimed a township official said closing the drain would be illegal, they cited no regulation; and the court noted the more plausible source of any constraint was private covenants—insufficient to constitute state regulatory action under Cedar Point Nursery v. Hassid and Penn. Coal Co. v. Mahon.

5) Michigan takings: broader in theory, forfeited in practice

While acknowledging AFT Michigan v. Michigan and the potentially broader scope of the Michigan Takings Clause, the panel declined to develop the argument because plaintiffs did not explain in their opening brief how Michigan doctrine would change the outcome on these facts.

6) Other constitutional claims: no plausible state action, no comparator, no agreement

The due process claims failed primarily because the complaint did not plausibly plead a deprivation attributable to state actors once the drain was treated as private and the flooding attributed to broken private pipes/sediment (see Phillips v. McCollom; Jackson v. Metro. Edison Co.). Substantive due process failed because the alleged conduct was not remotely “conscience-shocking” under County of Sacramento v. Lewis and McIntosh v. City of Madisonville. Equal protection failed for lack of a similarly situated comparator under Ctr. for Bio-Ethical Reform, Inc. v. Napolitano. The conspiracy claim failed for lack of factual allegations of agreement and lack of an underlying unlawful act under Marvaso v. Sanchez and Boxill v. O'Grady.

C. Impact

• Subdivision infrastructure disputes will turn on recorded instruments early: Plaintiffs cannot assume that drains under private lots are public responsibilities; plats, certificates, and covenants may resolve “who owns/controls the easement” at the pleading stage.
• Flooding takings claims face a sharpened negligence/takings boundary: The opinion reinforces that poorly planned public works or failure to investigate drainage capacity—without intent/foreseeability allegations—reads as negligence, not a compensable taking.
• Litigation targeting the wrong defendant will be dismissed: The court pointedly noted plaintiffs did not sue the developer/proprietor (Chestnut Run LP). Future litigants will likely need to pursue private-law remedies (covenants/easement enforcement, nuisance, contract, HOA governance, or tort) against private easement holders when documents show private control.
• Procedural posture matters: The decision underscores that courts can use incorporated-by-reference and public records to test plausibility under Rule 12(b)(6), limiting the ability to “wait for discovery” when the critical documents are recorded and undisputed.

4. Complex Concepts Simplified

• Physical taking (by flooding): Government action causes a physical invasion (like recurring flooding) that effectively appropriates use of land. But it generally must be intended or at least reasonably foreseeable—not a freak accident or mere careless mistake.
• Regulatory taking: Government does not physically invade but restricts how an owner may use property (zoning, access rules, permitting) so severely that it is tantamount to a taking. Here, plaintiffs did not identify an actual regulation limiting their use.
• Easement ownership/possession: An easement is a legal right to use someone else’s land for a specified purpose (e.g., drainage). Who holds that right is determined by recorded documents. If the government does not hold the easement, it typically has no corresponding duty to maintain it and cannot be said to have “taken” property by not repairing it.
• Common-law dedication: Private land becomes public only if the owner intends to dedicate it for public use (and the public accepts). A municipality’s isolated repair work does not automatically prove the owner’s intent.
• Prescriptive easement: An easement gained by long-term adverse use (similar to adverse possession, but for use rights). Michigan generally requires adverse, open, continuous use for 15 years; a single repair is not enough.
• State action (for constitutional claims): Federal constitutional claims generally require that the challenged deprivation be fairly attributable to the government, not purely private parties or private contracts.

5. Conclusion

The Sixth Circuit’s decision in Banks v. Charter Township of Bloomfield is a pleading-stage roadmap for flooding disputes at the boundary of public infrastructure and private subdivision easements. The court reaffirmed that (1) flooding can be a physical taking, but only when plausibly tied to government action with intended or foreseeable consequences—not merely negligent planning; and (2) a government’s refusal to repair drainage infrastructure generally cannot support takings liability where recorded instruments show the easement is private and not possessed by the government.

Beyond takings doctrine, the opinion highlights a recurring practical lesson: in property-rights litigation, recorded plats and covenants can be dispositive—and courts may consider them at the motion-to-dismiss stage, preventing discovery-driven attempts to recharacterize private infrastructure as public responsibility.