Should City Be Liable for Undisclosed Storm Drain?

Homeowners Robert and Lise were preparing to remodel their home. During the process, they discovered an unrecorded, deteriorated, 40-year-old corrugated metal storm-drain pipe about 10 feet beneath their house.

Their subdivision was recorded in 1947, and their house was built in 1956. Robert and Lise sued the city for inverse condemnation damages for failure to disclose the storm-water drain pipe.

Evidence showed their house is worth between $525,000 and $550,000, but it would be worth at least $750,000 without the deteriorating storm-water drain under the house.

The city responded that it had no record of the storm-water drain pipe on its maps. When the subdivision was approved in 1947, the area was part of the county, and it has no records of any storm drain there either.

Robert and Lise presented evidence that it would cost about $35,000 to move the storm-water drain pipe to an easement area along the lot boundary. But they sought damages for the diminished value of their home due to the undisclosed storm-water drain pipe under their house.

If you were the judge, would you award Robert and Lise damages for the diminished value of their residence due to the undisclosed storm-water drain pipe under their house?

The judge said no.

Homeowners Robert and Lise were unable to present any evidence that either the county or city knew about or participated in installation of the storm-water pipe under their house, the judge said. Nor was there any evidence the city accepted it by dedication or exercising dominion over it, he said.

The obvious conclusion, he said, is that the storm-water drain pipe was entirely private, perhaps installed by the subdivision developer, the judge conjectured.

“The evidence here falls far short of that held sufficient to support imposition of inverse condemnation liability,” the judge said. Therefore, the city has no liability to Robert and Lise for damages due to the discovery of the storm-water drain pipe beneath their home, the judge ruled.

Based on the 2000 California Court of Appeal decision in DiMartino vs. city of Orinda.