217 F. Supp.2d 206 (2002) | Cited 0 times | D. Rhode Island | August 20, 2002


This lawsuit is the latest chapter in a contentious dispute between theState of Rhode Island ("State") through the Department of EnvironmentalManagement ("DEM") and Pascoag Reservoir & Dam, LLC ("Pascoag").Plaintiff, Pascoag, claims that the State has engaged in a taking of itsproperty, and that the United States and Rhode Island Constitutionsmandate that compensation be paid to it for that property.1 Thetaking of property, Pascoag alleges, was the acquisition of a portion ofthe Reservoir bottom by adverse possession and the acquisition of use ofthe Reservoir by prescriptive easement. The State has moved to dismissthe complaint, claiming that, as a matter of law, when a state acquiresproperty by adverse possession or prescription that does not constitute ataking. The State also argues that any lawsuit based on a constitutionaltakings argument is barred by the statute of limitations.

The dispute places this Court at a curious juncture between propertylaw and constitutional law. In property law, it is a straightforwardproposition that, under certain conditions, title to property may, byoperation of law, be transferred to another without compensation. Inconstitutional law, it is a straightforward proposition that thegovernment cannot take private property without just compensation. ThisCourt must determine how these two propositions interact with eachother. Although defendant contends that the two areas of law are`mutually exclusive,' they are not. Any state statute must adhere to therequirements of the United States Constitution. In this case, the Courtconcludes that plaintiff has alleged a takings claim against the State ofRhode Island. Since the Court holds that the taking occurred in 1975,plaintiff's claim, asserted twenty-six years after the taking, is toostale to warrant prosecution. Therefore, plaintiff's federal takingsclaim is dismissed. Plaintiff's remaining state law claims are alsodismissed but without prejudice becausethis Court declines to exercise supplemental jurisdiction over thosestate claims.


This complaint was filed in this Federal District Court on October 18,2001. The complaint asserts four claims against the State. Count Ialleges that the State has violated the Takings Clause of the Fifth andFourteenth Amendments to the United States Constitution. Count II allegesthat the State has violated the Takings Clause of the Rhode IslandConstitution. Count III seeks a declaratory ruling that the State isresponsible for the repair, maintenance, and upkeep of the PascoagReservoir and dam. Count IV seeks reimbursement for any local taxes andassessments paid to the Towns of Burrillville and Glocester, and anylocal fire districts. With the exception of Count I, plaintiff's claimsare based on state law. Defendant has moved to dismiss the wholecomplaint for failure to state a claim upon which relief can be granted.


As plaintiff has alleged a constitutional violation in Count I, thisCourt's jurisdiction is based on the federal question raised in thecomplaint. 28 U.S.C. § 1331. The constitutional violation stems fromthe Fifth and Fourteenth Amendments to the U.S. Constitution.28 U.S.C. § 2201, 2202 provides a form of relief, declaratoryjudgment, for such violations. Because plaintiff seeks damages for aviolation of a constitutional right, the Court treats this action asbrought pursuant to 42 U.S.C. § 1983. As the remaining counts arestate law claims, this Court has supplemental jurisdiction pursuant to28 U.S.C. § 1367 to consider such matters.


In ruling on a motion to dismiss for failure to state a claim uponwhich relief can be granted, the Court construes the complaint in thelight most favorable to plaintiff, taking all well-pleaded allegations astrue and giving plaintiff the benefit of all reasonable inferences.Fed.R.Civ.P. 12(b)(6); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49,52 (1st Cir. 1990). Because a 12(b)(6) motion often comes in the earlystages of the litigation, dismissal under Rule 12(b)(6) is appropriateonly if "it appears beyond doubt that the plaintiff can prove no set offacts in support of his claim which would entitle him to relief." Judgev. City of Lowell, 160 F.3d 67, 72 (1st Cir. 1998) (quoting Conley v.Gibson, 355 U.S. 41, 45-46 (1957)).

In a Rule 12(b)(6) motion, the Court generally may examine only thepleading itself. In a notice pleading system, the pleading serves toinform defendant of the claims made against him or her. Langadinos, 199F.3d at 72-73. The Court need not accept unsupported conclusions orinterpretations of law. Washington Legal Found. v. Massachusetts BarFound., 993 F.2d 962, 971 (1st Cir. 1993). If the pleading fails to makeout a legal claim upon which relief can be granted or fails to allege anyfacts that would support a legal claim, the pleading is insufficient andshould be dismissed. See Correa-Martinez, 903 F.2d at 52-53.


A. Facts as Plaintiff Alleges

The complaint alleges the following facts. Pascoag is the owner ofrecord of the Pascoag Reservoir ("Reservoir"). The Reservoir is locatedin the Towns of Burrillville and Glocester, Rhode Island. The Reservoiris a man-made body of water consisting of approximately 350 acres,originally created in 1860 by various riparian mill owners as a source ofpower for their mills. Plaintiff's predecessors in titlehave been thePascoag Reservoir Association, the Pascoag Reservoir Corporation, and thePascoag Investment Corporation. In 1965, the State constructed a boatramp into the Reservoir. In 1995, title to the Reservoir in fee simplewas conveyed to plaintiff. Intermittently, between 1987 and 1997 theState unsuccessfully negotiated to buy the Reservoir. In 1997, DEMnotified Pascoag in writing that the State had acquired an interest inthe Reservoir by adverse possession or prescription. DEM then filed suitin Rhode Island Superior Court to enforce its claim.

B. Determinations of State Law

On June 20, 2001, the Rhode Island Supreme Court held that the Statehad acquired portions of the Reservoir bottom by adverse possession2and had acquired, on behalf of the public, a prescriptive easement to usethe boat ramp to obtain access to the Reservoir for recreationalpurposes. Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826, 838(R.I. 2001) (3-2) (overruling the trial court). The effect of thatdecision, and particularly the finding of a public easement byprescription, is to prevent the drainage or alteration of the Reservoir byplaintiff and to allow the public continuous access to the Reservoir forrecreational use. The Supreme Court held that the State had begun to usethe Reservoir property in 1965 and, under the Rhode Island ten yearadverse possession statute, had acquired title to a portion of theReservoir plus an easement in 1975. Id.

C. Adverse Possession and Easement by Prescription

Adverse possession and prescriptive easements are creatures of statelaw, not federal law. Chapter 7 of Title 34 of the Rhode Island GeneralLaws sets forth the statutory definition of adverse possession andprescription.3 Adverse possession is a method of transfering title infee simple of a portion of real property. Certain conditions must bemaintained over a period of time set by statute. R.I. Gen. Laws §34-7-1. In Rhode Island, to complete a transfer of title by adversepossession, the claimant's possession must be actual, open, notorious,hostile, under claim of right, continuous, and exclusive. DelSesto v.Lewis, 754 A.2d 91, 94-95 (R.I. 2000). The possession must be over tenyears, the statutory period for adverse possession. R.I. Gen. Laws §34-7-1. Similarly, prescription is a method of creating an easement bycomparable criteria as adverse possession. The creation of an easement byprescription is the creation of a right to use and title to use thatcannot be revoked. Greenwood v. Rahill, 412 A.2d 228, 230 (R.I. 1980)("Once the state had acquired a prescriptive easement. . . , no act ofplaintiffs could divest the state of that right since such an easementconveys a good and rightful title forever.").

Adverse possession is an ancient English common law doctrine to clarifytitle in land. Tiffany Real Property § 1133 (3d ed. 1975). Thedefense of adverse possession acted as a bar to ejectment actions.Although various forms of adverse possession appeared in English law asearly as 1100 A.D., the current form of adverse possession-a fixed numberof years operating as a statute of limitation against claims to land-wasadopted by the Statute of James in 1623. Id. After a certain period oftime, claims to land can no longer be asserted, thus preventing "illegalclaims after the evidence necessary to defeat them has been lost" andadvancing the community's interest in "the security of title." Id. at§ 1134. Furthermore, adverse possession discourages record ownersfrom `sleeping on their rights' by neglecting to take the appropriatelegal steps to maintain their possession. See id.

An easement is a right to use another's property in a certain mannerthat simultaneously acts as a limitation on that other person's abilityto use his or her property in an unrestricted manner. II American Law ofProperty § 8.4 (1952). It is a property right against the subjectedland as well as all other parties. Id. at § 8.5. It cannot beterminated by the possessor of the land subject to it. Id. at §8.14. An appurtenat easement is an easement that is tied to a specificparcel of land and is not a personal right. Tiffany Real Property §1193. The easement benefits that land and the possessor's use andenjoyment of that land. Here, the easement is appurtenant to the parcelof land that was adversely possessed by the State. One can only acquire aprescriptive right over something that could otherwise be granted.Therefore, for example, one cannot acquire by prescription rights to landheld in public trust because such rights can never be granted by theState. Id. at § 1192.

Under Rhode Island law, the State may acquire title by adversepossession or prescription. Reitsma, 774 A.2d at 838 (state acquires titleby adverse possession and easement by prescription); Greenwood, 412 A.2dat 230 (state acquires easement by prescription). Additionally, theUnited States Supreme Court has held that officers of the United States,sued for trespass, may raise a defense of lawful title by adversepossession. Stanley v. Schwalby, 147 U.S. 508, 519 (1893).


As a preliminary matter, this Court must define the narrow scope of thelegal issue that this Court may consider. Additionally, the Court mustresolve some affirmative defenses alluded to by defendant. Defendantargues that the doctrine of res judicata bars plaintiff from pursuingthis action because the takings issue and the statute of limitationsissue were determined by the Rhode Island Supreme Court. At the hearingon this motion, defendant also argued that the Rooker-Feldman doctrineprohibits this federal court from reviewing the state court decision.Plaintiff argues that the takings issue was never properly before theRhode Island Supreme Court, and that any statements made on the takingsissue by the Rhode Island Supreme Court should be disregarded as dicta.In addition, as a jurisdictional prerequisite, this Court must determineif this issue is ripe for a federal court's consideration.

A. Conclusions of State Law

This Court cannot revisit the conclusion of the Rhode Island StateSupremeCourt on an issue of state law. Erie R.R. Co. v. Tompkins,304 U.S. 64, 78 (1938) ("Except in matters governed by the FederalConstitution or by Acts of Congress, the law to be applied in any case isthe law of the State."). A state Supreme Court has the final word on whatconstitutes adverse possession or easement by prescription. See id. Theprecise issue of adverse possession and prescription in this case has beenlitigated and determined by the Supreme Court of Rhode Island. Reitsma,774 A.2d at 838. Principles of res judicata apply. This Court cannotrevisit the Rhode Island Supreme Court's holding that the State acquiredtitle in fee simple by adverse possession and an easement byprescription. This Court can only address the consequences of the Stateacquiring title to a piece of land by adverse possession and an easementby prescription. See Erie R.R. Co., 304 U.S. at 78.

B. Claim Preclusion

The doctrine of res judicata is a bar to a party litigating anew issuesthat have already been decided by a court. Defendant argues thatplaintiff is precluded from litigating the takings claim because it wasraised in a prior state court proceeding. Res judicata is a term thatapplies to two types of preclusion, claim preclusion and issuepreclusion. Liu v. Striuli, 36 F. Supp.2d 452, 470-71 (D.R.I. 1999). Whena federal court examines whether a state court decision has a preclusiveeffect, the federal court must use the same law that a state court wouldemploy in making such a determination. Texaco Puerto Rico, Inc. v.Medina, 834 F.2d 242, 245 (1st Cir. 1987). Therefore, this Court mustapply state law to determine if res judicata applies. See id.

Claim preclusion acts as a bar to plaintiff taking a second bite at theapple through subsequent litigation. ElGabri v. Lekas, 681 A.2d 271, 276(R.I. 1996) (adopting Restatement 2d of Judgments § 24). Claimpreclusion encourages finality and consistency in judicial rulings. TheRestatement sets forth the requirements for claim preclusion: "When avalid and final judgment rendered in an action extinguishes theplaintiff's claim pursuant to the rules of merger or bar, the claimextinguished includes all rights of the plaintiff to remedies against thedefendant with respect to all or any part of the transaction, or seriesof connected transactions, out of which the action arose." Restatement 2dof Judgments § 24(1). In this case, the State is seeking to barplaintiff from relitigating an issue that it raised as a counterclaim instate court.

Claim preclusion does not apply when a court reserves a party's rightto maintain a second action, as happens when a court dismisses a claimwithout prejudice. "When any of the following circumstances exists, thegeneral rule of § 24 does not apply to extinguish the claim, and partor all of the claim subsists as a possible basis for a second action bythe plaintiff against the defendant: . . . (b) The court in the firstaction has expressly reserved the plaintiff's right to maintain thesecond action." Restatement 2d of Judgments § 26(1)(b).4 Here, thestate trial court dismissed Pascoag's takings counterclaimwithoutprejudice. Reitsma, 774 A.2d at 837. Pascoag notified the state court thatit was preserving the issue for subsequent action and, thus, avoided theeffects of claim preclusion. See Restatement 2d on Judgments §26(1)(b); see also Lovely v. Laliberte, 498 F.2d 1261, 1264 (1st Cir.1974).

Additionally, there was no final judgment on the merits as to Pascoag'stakings claim. No court entered a judgment on the takings claim. See PureDistributors, Inc. v. Baker, 285 F.3d 150, 156-57 (1st Cir. 2002)(discussing the finality requirement). Pascoag raised the claim beforethe state court, but, as the Rhode Island Supreme Court noted inReitsma, Pascoag's takings claim was dismissed without prejudice. 774A.2d at 837. The Rhode Island Supreme Court does speculate that anytakings claim would be barred by the statute of limitations. Id. at 838.Since that issue was not properly before the Court, however, any dicta onthe takings issue is not a final judgment on the merits. See PureDistributors, Inc., 285 F.3d at 156-57. Claim preclusion does not barthis lawsuit.

C. Issue Preclusion

Defendant additionally argues that issue preclusion prevents Pascoagfrom revisiting a determination that the statute of limitations barsplaintiff's takings claim. The Rhode Island Supreme Court adopted thefollowing requirements for issue preclusion or collateral estoppel toapply: "(1) that there must be an identity of issues, (2) that the priorproceeding resulted in a final judgment on the merits, and (3) that theparty against whom collateral estoppel is asserted is the same as or is inprivity with a party in the prior proceeding." State v. Jenkins,673 A.2d 1094, 1096 (R.I. 1996). For an identity of issues to exist, "(1)the issue sought to be precluded must be identical to the issuedetermined in the earlier proceeding, (2) the issue must actually havebeen litigated in the prior proceeding, and (3) the issue mustnecessarily have been decided." E.W. Audet & Sons, Inc. v. Firemen's FundIns. Co., 635 A.2d 1181, 1186 (R.I. 1994).

As discussed supra, the statements made by the Rhode Island SupremeCourt about the takings claim, including any statements concerning thestatute of limitations, are not part of a final judgment and are notessential to that Court's judgment as the matter was not properly beforethat Court. Therefore, the issue was not actually litigated nor was itdecided. See id. Issue preclusion does not bar plaintiff's takings claimin this case.5

D. Rooker-Feldman Doctrine

The Rooker-Feldman doctrine is a basic principle of subject matterjurisdiction that federal district courts should not serve as appellatecourts to state courts. See, e.g., Wilson v. Shumway, 264 F.3d 120,123-26 (1st Cir. 2001) (discussing the Rooker-Feldman Doctrine). The onlyappropriate federal appellate court to a state court is the United StatesSupreme Court. Id. at 123 ; see also Keating v. Rhode Island,785 F. Supp. 1094, 1098 (D.R.I. 1992). Therefore, a federal districtcourt should not review issues already determined by a state court. Evenif the claim was not presented to a state court,the Rooker-Feldmandoctrine "forecloses lower federal court jurisdiction over claims thatare `inextricably intertwined' with the claims adjudicated in a statecourt." Picard v. Members of the Employee Ret. Bd., 275 F.3d 139, 145(1st Cir. 2001) (quoting Sheehan v. Marr, 207 F.3d 35, 39-40 (1st Cir.2000)). `Inextricably intertwined' is defined as a situation where thefederal claim can only succeed if the state court claim fails. Id. Inother words, the federal court would have to reverse the state court forthe federal claim to prevail. Id.

Here, the Rooker-Feldman doctrine is not a bar to this litigation. Seeid. For the takings claim to succeed it is not necessary to reverse anypart of the state court's decision. See id. It is precisely the issue ofwhether adverse possession or prescription constitutes a taking thatPascoag seeks to litigate here. If the state court's decision on theadverse possession and easement by prescription issue were to bereversed, plaintiff's takings claim could not be before this Court. Seeid. Plaintiff would be in possession of all of the property in question.The two claims, therefore, are not inextricably intertwined, and theRooker-Feldman doctrine does not apply. See id. Furthermore, as theRhode Island courts did not fully adjudicate and determine the question,the United States Supreme Court would not be able to review the decisionmade in Reitsma because that issue would not be ripe for Supreme Courtreview. See, e.g., Yee v. City of Escondido, 503 U.S. 519, 537-38 (1992)(declining to review a regulatory takings claim for lack of ripeness).

E. Ripeness Doctrine

In the State's unwavering determination to argue that plaintiff'sclaims are stale or that the dispute has already been decided, the Stateignores the argument that the claim may be premature. The United StatesSupreme Court has set forth certain ripeness requirements for a takingsclaim to be brought in federal court. See Williamson County Reg'lPlanning Comm'n v. Hamilton Bank, 473 U.S. 172, 186 (1985).

If a case is not `ripe', then this Court generally lacks jurisdictionover the matter. Faerber v. City of Newport, 51 F. Supp.2d 115, 124(D.R.I. 1999). If the dispute is not ripe, then the Court would beengaged in abstract disagreements over matters that "may not occur asanticipated or may not occur at all." Id. (quoting Riva v.Massachusetts, 61 F.3d 1003, 1009 (1st Cir. 1995)). Thus, the Court wouldbe rendering a mere advisory opinion. Such advisory opinions areprohibited by Article III of the United States Constitution which requiresfederal courts to hear actual cases and controversies. Ernst & Young v.Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995). Becauseripeness is part of the jurisdictional prerequisite for review, thisCourt is compelled to discuss the ripeness doctrine as it pertains to theTakings Clause of the Constitution despite the fact that defendant didnot raise or brief the issue. See Fed.R.Civ.P. 12(h)(3) (Court mustdismiss action sua sponte for lack of subject matter jurisdiction).Plaintiff did, however, make an anticipatory argument in its objection tothe motion to dismiss.

In Williamson, the Supreme Court set forth two requirements before atakings claim is ripe for federal court review. 473 U.S. at 186. First, aparty must obtain a final decision regarding the property interest. Id.Second, a party must utilize the state procedures for obtaining justcompensation. Id. If those two requirements are not met, the takingsclaim is not ripe for review. Id. The first prong of the Williamsonripenesstest is satisfied. The Rhode Island Supreme Court issued a finaldecision regarding the property right. Reitsma, 774 A.2d at 838. Thesecond prong of the test, whether the state procedures for compensationhave been utilized, is not as straightforward. See Williamson, 473 194. The state procedures must be utilized because the Constitutiondoes not prohibit the state from taking property, it only prohibits thestate from taking property and not paying just compensation. Id. at194-95.

If compensation is paid, even at a date after the taking of theproperty, then there is no violation of the Constitution and no disputefor the Court to resolve. See id. at 195. If the state lacks procedures,or its procedures are inadequate, then the takings claim would be ripefor review in federal court. See id. at 197; McKenzie v. City of WhiteHall, 112 F.3d 313, 317 (8th Cir. 1997) (noting that plaintiff had failedto establish that a state inverse condemnation action would be futile).State procedures would be inadequate when the state's highest courtdenies that compensation could be available for the government's actionthat affected a property interest. See First English Evangelical LutheranChurch v. County of Los Angeles, 482 U.S. 304, 312 n. 6 (1987).

The situation presented here is unlike the scenario this Court faced inQ.C. Const. Co. Inc. v Verrengia, 700 F. Supp. 86, 90 (D.R.I. 1988).There, plaintiff had failed to establish that the state supreme courtwould refuse to acknowledge that inverse condemnation could be determinedto be a taking and provide compensation. Id. This Court noted thatalthough the Rhode Island Supreme Court had not determined that a personcould seek compensation for an inverse condemnation claim under statelaw, that Court had similarly not ruled that such a claim forcompensation would not be allowed. Id. The Court distinguished thatsituation from the facts presented in First English where "plaintiff hadbeen effectively denied compensation by the highest state court." Id.Because plaintiffs there had not attempted to seek compensation in statecourt, the claim was premature. Id. at 91; see also Deniz v. Municipalityof Guaynabo, 285 F.3d 142, 147 (1st Cir. 2002) (dismissing takings claimfiled in federal court on ripeness grounds when question of whethercompensation was available had not been decided by the state's highestcourt).

Plaintiff argues that if an effort to obtain compensation from theState would be futile or otherwise unavailable, the ripeness requirementis satisfied. Plaintiff contends that because the State did not takeproperty until the Rhode Island Supreme Court issued its ruling, it couldnot have sought compensation prior to that ruling. Additionally,plaintiff contends that because that ruling contains dicta that the Stateengaged in no taking of property, any effort to seek compensation understate procedures would be futile. Because further proceedings at thestate level would be futile, plaintiff argues, the claim is ripe forreview here in federal court.

Although plaintiff initially sought compensation in the Rhode Islandstate court system, the claim was dismissed without prejudice. Reitsma,774 A.2d at 837. Subsequent to that dismissal, the Rhode Island SupremeCourt intimated that when a state acquires property by adverse possessionor an easement by prescription, the record owner has no cognizabletakings claim. Id. at 837-38 (noting that even if a takings claim existedhere, it would be time-barred). Thus, the Rhode Island Supreme Court haseffectively barred any avenue for plaintiff to secure compensationin state court. See id. If the state has no procedures by which a partycan seek compensation as a post-depravation remedy, the second prong ofWilliamson is satisfied and the case is ripe for review by a federalcourt. See 473 U.S. at 197; see also City of Monterey v. Del Monte Dunesat Monterey, Ltd., 526 U.S. 687, 721 (1999) ("A federal court, moreover,cannot entertain a takings claim under § 1983 unless or until thecomplaining landowner has been denied an adequate post-deprivationremedy.").


Plaintiff alleges that the State, when it acquired an easement byprescription and a portion of the Reservoir bottom by adverse possession,violated plaintiff's rights under the Takings Clause of the Fifth andFourteenth amendments of the United States Constitution. Defendant movesto dismiss arguing that, as a matter of law, when the State acquirestitle by adverse possession and/or an easement by prescription, the Stateis not subject to the Takings Clause.

Therefore, the primary question before this Court is whether theacquisition of property interests by a state through adverse possessionand prescription is subject to the Takings Clause of the United StatesConstitution. No federal court has addressed this question before.Several state courts, however, have discussed this issue. This Courtnotes at the onset that plaintiff is not challenging the State's abilityto acquire title to property by adverse possession or prescription. As amatter of state law, the Rhode Island Supreme Court has determined thatthe state may acquire title to property in this manner. Reitsma, 774 A.2dat 838. This Court must only determine if just compensation is payable.As this is a motion to dismiss at the preliminary stages of litigation,the Court can only determine if plaintiff has alleged a sufficienttakings claim in its complaint to warrant further proceedings.

A. Federal Takings Clause

The Fifth Amendment of the Constitution states that "private propertyshall not be taken for public use, without just compensation." U.S.Const. amend. V. The Fifth Amendment applies to the Federal Government.The Fourteenth Amendment, which applies to the states, does not containthe same Takings Clause; the Due Process Clause therein differs in thatit does not mention just compensation. U.S. Const. amend. XIV.Nevertheless, the Takings Clause of the Fifth Amendment has beenincorporated into the Fourteenth Amendment. Chicago, B & Q. R.R. Co. v.City of Chicago, 166 U.S. 226, 241 (1897). Therefore, the Takings Clausevia incorporation applies to the states. See id.

The Takings Clause generally has been held to apply to two types ofgovernmental action: the taking of property by the government's eminentdomain power and the taking of property by inverse condemnation. Thepower of eminent domain is an inherent sovereign power. See Tiffany RealProperty § 1252. Eminent domain allows the government to take privateproperty, for the benefit of the public, when compensation is paid. Id.Inverse condemnation occurs when government regulation, in effect,condemns some or all of the use of the property, diminishing the value toits owners to such an extent that it is as if the government hadcondemned the property. As Justice Oliver Wendell Holmes wrote eightyyears ago in a seminal takings case: "The general rule at least is, thatwhile property may be regulated to a certain extent, if regulation goestoo far it will be recognized as a taking." Pennsylvania Coal Co. vMahon, 260 U.S. 393,415 (1922). Inverse condemnation thus leads to thede facto taking by eminent domain through the state's power to regulate,whereas a taking by the eminent domain power is an explicit use of thesovereign power. See City of Moneterey, 526 U.S. at 734-35 (Souter J.,concurring in part and dissenting in part) (noting that "the ultimateissue [of compensation] is identical in both direct and inversecondemnation actions.").

1. Elements of a Takings Claim

In a federal Takings Clause analysis, plaintiff must establish thatproperty was taken by the government for public use without justcompensation. U.S. Const. amend. V. The Fifth Amendment does not mandatethat government cannot interfere with property rights, rather it mandatesthat the government must provide just compensation when an "otherwiseproper interference amount[s] to a taking." First English, 482 U.S. at315. Thus, in an inverse condemnation case, the statute or regulation atissue is not invalidated, but the remedy is, in some situations, thatcompensation must be paid by the government to the property owner. Seeid. Thus, it is the Fifth Amendment that provides the remedy for aninterference with property rights that rises to the level of a taking.See id. at 314-16 & n. 9. The government does have the option, once ataking is judicially determined, to cease interfering with the propertyand pay compensation only for a `temporary' taking, but not for anysubsequent `permanent' taking. See id. at 318.

Many of the most complicated taking issues revolve around the conceptof what the property interest is that was taken. Here, the propertyinterest is straightforward. The property interest is the ownership ofreal property in fee simple and the ownership of an easement overanother's property. Reitsma, 774 A.2d at 838. These are both classicproperty interests in land. This is not a case where government regulationleaves the property in the hands of the record owner, but the propertyhas been so diminished by governmental regulation that there was a defacto taking of property. See Penn Central Transp. Co. v. New York City,438 U.S. 104, 124-27 (1978).

For a takings claim to be prosecuted, the government must have takenthe property interest. Here, by operation of law, title to these propertyinterests was transferred to the State from a private entity. Reitsma,774 A.2d at 838. The State has acquired title to the land in fee simple.The State has also acquired title to an easement by prescription.

The third element of a takings claim is that the taking must be for apublic use. The public use requirement is generally viewed as arestriction on the government's eminent domain power. Hawaii Hous. Auth.v. Midkoff, 467 U.S. 229, 239-42 (1984) (discussing the public userequirement). The government cannot use that power unless its use is forthe benefit of the public. Id. at 248 (defining public use, however, asreaching to the full extent of the state's police power). Here, the Statehas taken the property interests specifically on behalf of the public forpublic use. This fact distinguishes this case from others where byoperation of law title to land is transferred from one private entity toanother for the benefit of the other.

In this case, title has been transferred from a private entity to theState for the benefit of the public. The State is thusacquiring titleexpressly for the benefit of the public. The Rhode Island Supreme Courtexplicitly stated that was how the State was able to adversely possessthe property and acquire an easement over the Reservoir. Reitsma, 774A.2d at 838.

2. United States Supreme Court Takings Clause Decisions

Over the last twenty years, the United States Supreme Court hasaddressed governmental takings in great detail, developing a map for thisCourt to follow. The Supreme Court recognized that there are two types ofper se takings where compensation is mandated. The first type is wheregovernmental action has resulted in a permanent physical occupation ofthe property. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,441 (1982). The second type of per se taking occurs when governmentalregulation denies the owner of virtually all economically beneficial useof the property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003,1015 (1992). In each of these instances, just compensation is required.It is of little consequence that the governmental invasion is small orthat the public purpose served is great. Even where there is no per setaking, there may still be a regulatory taking, but the Court must engagein an ad hoc factual inquiry to determine if just compensation is due.Penn Central, 438 U.S. at 124.

Although the government may have admirable goals of land useregulation, the government's power to advance these goals is subject tothe limits imposed by the Takings Clause. See Dolan v. City of Tigard,512 U.S. 374, 396 (1994). These per se taking rules established by theSupreme Court form an outer limit to the government's ability toeffectuate public policy without compensation. See id. The per se rulesserve "to bar Government from forcing some people alone to bear publicburdens which, in all fairness and justice, should be borne by the publicas a whole." Nollan v. California Coastal Comm'n, 483 U.S. 825, 835 n. 4(1987) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).Additionally, these limitations on the exercise of governmental powerprevent a state from "sidestepp[ing] the Takings Clause by disavowingtraditional property interests long recognized under state law." Phillipsv. Washington Legal Found., 524 U.S. 156, 157 (1998).

A permanent physical occupation does not merely restrict the use ofproperty, but results in the "practical ouster of his possession."Loretto, 458 U.S. at 428 (quoting Northern Transp. Co. v. Chicago,99 U.S. 635, 642 (1879)). It does not matter that the occupation may besmall or that the occupation does not "seriously interfere with thelandowner's use of the rest of his land." Id. at 430. In Loretto, theSupreme Court cited cases where the Court had found that a permanentphysical occupation was the equivalent of a governmental taking ofownership to the property. See e.g., id. at 430 ("It would be as completeas if the United States had entered upon the surface of the land andtaken exclusive possession of it.") (quoting United States v. Causby,328 U.S. 256, 261 (1946)); id. at 431 ("[B]ecause there had been `anactual taking of possession and control,' the taking was as clear as ifthe Government held full title and ownership.") (quoting United Statesv. Pewee Coal Co., 341 U.S. 114, 116 (1951)); accord Palazzolov. RhodeIsland, 533 U.S. 606, 617 (2001) ("The clearest sort of taking occurswhen the government encroaches upon or occupies private land for its ownproposed use.").

The Supreme Court continued its explication of the nature of apermanent physical occupation by discussing how such an occupationinterferes with the property rights traditionally associated withownership of real property. Loretto, 458 U.S. at 435-36. The Court notedthat, in the case of a permanent physical occupation, "the governmentdoes not simply take a single `strand' from the `bundle' of the propertyrights: it chops through the bundle, taking a slice of every strand."Id. at 435. The rights at issue are the rights to possess, use, anddispose of property. Id. The owner is denied the power to exclude othersfrom the property. Id. "The power to exclude has traditionally beenconsidered one of the most treasured strands in an owner's bundle ofproperty rights." Id. (citing Kaiser Aetna v. United States, 444 U.S. 164,179-80 (1979)). In Kaiser Aetna, the Court held that a navigationalservitude that gave access to the public to a private pond was aconstitutional taking that required just compensation. 444 U.S. at 179-80("In this case, we hold that the `right to exclude,' so universally heldto be a fundamental element of the property right, falls within thiscategory of interests that the Government cannot take withoutcompensation."). Related to the power to exclude, a permanent physicaloccupation denies the owner the power to control the use of theproperty. Loretto, 458 U.S. at 436. Additionally, the occupationeffectively strips from the owner the power to dispose of the propertybecause it will "empty the right of any value, since the purchaser willalso be unable to make any use of the property." Id. Finally, the Courtstated that when the action of the government allows a stranger to invadedirectly and occupy the property, there is a "special kind of injury."Id.

In Nollan, the United States Supreme Court ruled that a public easementwas a permanent physical occupation for the purposes of the per se takingrule of Loretto. 483 U.S. at 831-32. The Court stated that a takingoccurs "for the purposes of that rule, where individuals are given apermanent and continuous right to pass to and fro, so that the realproperty may continuously be traversed, even though no particularindividual is permitted to station himself permanently upon thepremises." Id. at 832; see also Kaiser Aetna, 444 U.S. at 180 ("And evenif the Government physically invades only an easement in property, itmust nonetheless pay just compensation."); but see Pruneyard ShoppingCenter v. Robins, 447 U.S. 74, 82-85 (1980) (concluding that the right toexclude students collecting signatures for petitions was not essential tothe property right of a shopping mall when it could restrict the activitywith reasonable time, place, and manner regulations).

The other per se taking occurs when governmental action denies theproperty owner of all economically beneficial use. See Lucas, 505 U.S. at1015. In Lucas, the Supreme Court offered a rationale for this per serule: "the heightened risk that private property is being pressed intosome form of public service under the guise of mitigating serious publicharm." Id. at 1018. The Court explained that where all economicallybeneficial use of land is denied, the state can only deny compensationwhen the interests that the state proscribes were never part of theowner's title. Id. at 1027. In U.S.Supreme Court parlance, this meansthat if the state action is part of the state's background principles ofproperty law and nuisance law, no compensation is due. Id. at 1029 ("Anylimitation so severe cannot be newly legislated or decreed (withoutcompensation) but must inhere in the title itself.").

Lucas contains little specific guidance on what supports thesebackground principles of law. The Court stated that "[a] law or decreewith such an effect must, in other words, do no more than duplicate theresult that could have been achieved in the courts-by adjacent landowners(or other uniquely affected persons) under the State's law of privatenuisance, or by the State under its complementary power to abatenuisances that affect the public generally, or otherwise." Id. The Courtgave a few examples. When the state takes property by necessity to stop afire, no compensation is due. Id. at 1029 n. 16. When the state denies apermit to fill in a lake-bed that would have the effect of floodingothers' land, no compensation is due. Id. at 1029. When the state ordersa nuclear plant to cease operations because it is situated on anearthquake fault, no compensation is due. Id. These, however, are allexamples of nuisance and not other background principles of propertylaw. With respect to property law, the Court cautioned however, that thestate may not simply recast its action as a background principle of statelaw. Id. at 1031 ("State, by ipse dixit, may not transform privateproperty into public property without compensation.") (quoting Webb'sFabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980)).Instead, the state carries the burden of proving that the backgroundprinciples allow a certain result. Id.

In a subsequent decision, the Court has explained that a backgroundprinciple of property law is not simply any law or regulation that was ineffect prior to an owner acquiring title. Palazzolo, 533 U.S. at 629-30.A background principle must be more than a preexisting regulation. Seeid. Some courts have ruled that the law of public trust and the law ofcustom are background principles because land held in public trust or bycustom was never part of a landowner's title. See, e.g., Stevens v. Cityof Cannon Beach, 854 P.2d 449, 456 (Ore. 1993) (holding that by customthe public had always held the dry sand beach in fee simple absolute andthat area was never part of the landowner's title); Orion Corp. v.State, 747 P.2d 1062, 1073 (Wash. 1987) (holding that state's shorelinewas held in public trust and any restrictions on use mandated by thepublic trust doctrine could not be a taking).

B. Analysis

Here, the State has acquired title to a portion of the bottom of theReservoir and an easement by prescription on behalf of the public to usethe Reservoir for recreational purposes. The State did not act throughits eminent domain power. The State, instead, utilized the adversepossession statute to acquire these property rights. Thus, this claim is aspecies of inverse condemnation. The statute, as applied, has condemnedthe property as if it had been taken by eminent domain.

When the State acquires title in fee simple to land, withoutcompensation, it engages in a permanent physical occupation of propertyof the highest order. See Loretto, 458 U.S. at 427-28. The State haspermanent possession of the land, resulting in the ouster of the recordowner. See id. It has acquired all of the sticks contained in the bundleof propertyrights because it owns the land. See id. at 435. The privateindividual has no property rights. See id. When the State acquires aneasement on behalf of the public that terminates a property owner's rightto exclude others from his or her land and allows any member of thepublic to enter and exit the property without restriction, the State hasengaged in a permanent physical occupation. See Nollan, 483 U.S. at831-32. Both are per se violations of the takings clause. See id.;Loretto, 458 U.S. at 441. Therefore, plaintiff has alleged a sufficienttakings claim in the complaint in this case.

This Court also notes that because the State acquired title to aportion of the reservoir bottom, the State has wiped out all ofplaintiff's economically beneficial use of that property. See Lucas, 505U.S. at 1015. Furthermore, the Court notes that as the State has placedthe entire reservoir under a public easement, the State may well havewiped out all economically beneficial use of the Reservoir. See id.; seealso Kaiser Aetna, 444 U.S. at 180 ("This is not a case in which theGovernment is exercising its regulatory power in a manner that will causean insubstantial devaluation of petitioner's private property; rather,the imposition of the navigational servitude in this context will resultin an actual physical invasion of the privately owned marina."). TheState has impressed a private individual into service to provide thepublic unrestricted use of private property. See, e.g., Lucas, 505 U.S. at1018. Plaintiff has alleged sufficient facts to make out a takingsclaim.

C. Defendant's Arguments

Defendant offers a number of arguments as to why the State's actionsshould not amount to a taking. The Court addresses each argument inturn.

1. Adverse Possession and the Takings Clause

Defendant argues that no compensation is due when property is acquiredby adverse possession. The crux of defendant's position is that adversepossession and compensation are mutually exclusive concepts-compensationis never paid when a private party adversely possesses property.Defendant is making the tautological argument that adverse possession bythe state cannot be a taking because the state has adversely possessedproperty. In this factual situation, this Court disagrees. Adversepossession is bar to trespass and ejection proceedings. See, e.g., R.I.Gen. Laws § 34-7-1. Here the government has taken possession of theproperty, and the government's actions are always subject to the TakingsClause of the Constitution. U.S. Const. art. VI, § 2 (the SupremacyClause). Plaintiff is not challenging the State's title to the property,rather plaintiff is seeking the remedy of just compensation. It does notmatter how the State takes property, only whether the Constitutionmandates that the State pay compensation. First English, 482 U.S. at314-15.

Defendant cites several state court cases for the proposition that whena state acquires property by adverse possession or an easement byprescription there is no taking. This Court presents a brief summary ofthose state court decisions cited by defendant and other decisions foundby the Court. Their persuasive value to this Court, however, is limitedfor two reasons. First, although state courts are equally competent todecide questions of federal law, a federal court is not bound by a statecourt's determination on an issue of federal law. Second, these statecourts, for themost part, were not interpreting the United StatesConstitution. They were interpreting their own state constitutions. Thetakings clauses in those state constitutions do not mirror the exact textof the United States Constitution, indeed some are significantly moredetailed.

In 1985, the Ohio Supreme Court was faced with a claim that the City ofColumbus had encroached on a private landowner's property. State, exrel. A.A.A. Investments v. City of Columbus, 478 N.E.2d 773 (Ohio 1985)(per curiam). Specifically, two streets had been constructed in such amanner that they occupied a small portion of property of the privatelandowner. Id. at 774. The Ohio Supreme Court only addressed the takingsissue under the Ohio Constitution that contains significantly differentwording than the federal Constitution. Id. The Court concluded thatadverse possession is not a taking because the government has not takenproperty, rather the former owner has lost any claim of ownership over theproperty. Id. at 775.

In 1993, the Alaska Supreme Court determined that a municipality'sprescriptive easement did not entitle a property owner to justcompensation under the Alaska and United States Constitutions. Weidnerv. State, 860 P.2d 1205, 1212 (Alaska 1993). The Court reasoned thatafter the prescriptive period had ended, any claim for just compensationwas similarly extinguished. Id. The statute of limitations forprescription barred any takings claim, it ruled. Id.

The Maine Supreme Court recently followed the Alaska Court's reasoningand held that there was no claim for just compensation in a case where amunicipality had acquired a prescriptive easement. Stickney v. City ofSaco, 770 A.2d 592, 603 (Me. 2001). The Court agreed that under the stateconstitution the private landowner must bring an action for inversecondemnation prior to the expiration of the prescriptive period. Id. Thedecisions of other state courts reflect similar reasoning. See Board ofCounty Comm'rs v Flickinger, 687 P.2d 975, 983-85 (Colo. 1984) (en banc)(concluding that adverse possession of a road, pursuant to statestatute, was not a taking); Commonwealth v. Stephens, 407 S.W.2d 711, 712(Ky. 1966) (rejecting the lower court's conclusion that the stateconstitution requires compensation in the case of adverse possession andholding that "since the original owner has lost his claim of title, thestate is no longer taking his property."); Rogers v. Marlin,754 So.2d 1267, 1273 (Miss.Ct.App. 1999) ("[D]amages are never a part ofadverse possession, which is what a prescriptive easement is. Unlikeeminent domain or a petition for a public way across the property ofanother without the benefit of the law of dominant/servient tenements,the original owner of the property over which the prescriptive easementin question runs has long since forfeited his right to demand payment forthe easement over his property."); Dunnick v. Stockgrowers Bank ofMarmouth, 215 N.W.2d 93, 96 (Neb. 1974) (concluding that the TakingsClause does not bar the state from acquiring property by adversepossession, especially where it does so on behalf of the public, and theowner must exercise his or her rights within the statutory possessionperiod); City of Ashland v. Hardesty, 543 P.2d 41, 43 (Or.Ct.App. 1975)(holding that the Takings Clause in the Oregon Constitution does notprohibit adverse possession by the State); Petersen v. Port of Seattle,618 P.2d 67, 70 (Wash. 1980) ("A 10-year period of time, however,together with the requisite elements of adverse possession would, in acase such as this, have vested the Port with a prescriptive avigationright in plaintiffs' property.That avigation easement, if prescriptivelyacquired, would not be compensable.").

In many of the state decisions on this issue, the state courts heldthat the party was precluded from bringing the takings claim after thestatutory period of adverse possession had been completed although theparty could have brought a takings claim prior to the end of thatstatutory period. See, e.g., Weidner, 860 P.2d at 1212. This is amisstatement of what is transpiring in adverse possession andprescription cases. The property interest is not acquired by thegovernment until the adverse possession and prescriptive period has beencompleted. A plaintiff could not bring a takings claim until thepossession or prescription period had been completed because, until thattime, the government had not taken a property interest. In the case ofadverse possession, prior to the end of the statutory period, the adversepossessor has no rights to the property. See, e.g., R.I. Gen. Laws §34-7-1. A record owner could bring an action of trespass and ejectment.Under the trespass claim, the record owner could seek damages for thetrespass. Under the ejectment claim, the record owner could stop theadverse possession clock from running and enjoin the putative adversepossessor from continued possession of the property. As the putativeadverse possessor had no property rights, however, the record owner couldnot make out a takings claim.

Similarly in the case of a prescriptive easement, the record ownercould bring an action for trespass and ejection. There is no propertyinterest, yet, that has been taken away from the record owner.Therefore, there has been no taking prior to the completion of thestatutory period. In this case, because the public was using theReservoir, and not the State, plaintiff had no claim against the State ofany kind prior to the end of the prescriptive period. Plaintiff couldonly sue private individuals for trespass. As there was no state law thatmandated that plaintiff allow access to these individuals, prior to theend of the prescriptive period, there was no state action and no takingsclaim could have been alleged.

If the takings clock were to stop at the moment the adverse possessionclock has run, then the record owner as against the government is in acurious Catch-22 situation. He or she had no takings claim prior to thecompletion of the adverse possession prescription period, but would besimilarly barred from having a takings claim after the period wascompleted. This Court does not sanction this bonanza for the governmentat the intersection of property law and constitutional law.

Many of these state court cases (as defendant argues) rely on theSupreme Court decision, Texaco v. Short, 454 U.S. 516 (1982), for theproposition that the State can adversely possess property and that suchpossession is not subject to the Takings Clause. Texaco v. Short,however, has nothing to do with adverse possession or prescription by thestate. In Texaco v. Short, the Supreme Court was faced with severalconstitutional challenges to the State of Indiana's Mineral Lapse Act.The Act provided "that a severed mineral interest that is not used for aperiod of 20 years automatically lapses and reverts to the current surfaceowner of the property, unless the mineral owner files a statement ofclaim in the local county recorder's office." 454 U.S. at 518. TheSupreme Court held that such a lapse was not subject to the TakingsClause. Id. at 530. The Court reasoned that this property may beabandoned, that the owner has no right to compensation, and that it is"the owner's failure to make any use of the property-and not the actionof the State-that causes the lapse of the property right." Id.

Texaco v. Short, despite its broad language, is not controlling here.In Texaco v. Short, the statute allowed the extinguishment of a propertyright based on abandonment. Id. at 518-20. Land cannot be abandoned. Uponextinguishment, any mineral rights reverted back to the land from whichthey had been severed. Id. This reversion is between two privateindividuals, much like the typical situation of adverse possession, wherethe government would not be required to provide compensation. See id.Here, the State assumes title, without compensation, allowing the publicto permanently physically occupy the record owner's land to effectuate apublic easement on a man-made reservoir, eliminating the owner's right toexclude people from its property. Texaco v. Short does not, as a matterof law, bar plaintiff's takings claim.

The Takings Clause was meant to protect private individuals fromexcessive government intrusion on their property rights. See, e.g.,Nollan, 438 U.S. at 835 n. 6. Simply because an area of law may beancient and well settled does not mean that it trumps the mandates of theUnited States Constitution. The Fifth Amendment contains a limitation ongovernmental power vis a vis private property. U.S. Const. Amend. V. ThisCourt recalls the words of Justice Holmes: "We are in danger offorgetting that a strong public desire to improve the public condition isnot enough to warrant achieving the desire by a shorter cut than theconstitutional way of paying for the change." Pennsylvania Coal Co., 260U.S. at 416; see also Nollan, 483 U.S. at 841-42 ("California is free toadvance its `comprehensive program,' if it wishes, by using its power ofeminent domain for this `public purpose,' see U.S. Const. Amdt. 5; but ifit wants an easement across the Nollan's property, it must pay forit.").

The government is not like another private individual, and theConstitution through the Takings Clause recognizes that distinction. Thegovernment has the power of eminent domain. The government has the powerto regulate land use. Had the government taken the property by eminentdomain, it would have been a taking and just compensation would have beendue to the owner. See Nollan, 483 U.S. at 831. Had the government createdan easement over the property by legislative action, just compensationwould have been due. See id. at 834-37 (reasoning that since arequirement of an "uncompensated conveyance of the easement outrightwould violate the Fourteenth Amendment," the conveyance of an easement asa condition for a permit also requires compensation unless there is anessential nexus between the legitimate state interest and thecondition); see also Opinion of the Justices (Public Use of CoastalBeaches), 649 A.2d 604, 611 (N.H. 1994) ("Because the bill provides nocompensation for the landowners whose property may be burdened by thegeneral recreational easement established for public use, it violates theprohibition contained in our State and Federal Constitutions against thetaking of private property for public use without just compensation.").

Had the state legislature regulated the use of the Reservoir, in such away that required private property owners to allow the public to usetheir property unfettered, just compensation would have been due. SeeNollan, 483 U.S. at 837. Had the government conditioned further benefitson the private individual allowing access to the property, a takingmighthave occurred. See id.; Dolan, 512 U.S. at 386 (discussing exactions andthe essential nexus test). The government cannot escape the TakingsClause by opting to sit by until title is transferred to it, and thenclaim that it is not subject to the United States Constitution. TheTakings Clause and adverse possession and prescription statutes cannot bemutually exclusive. The State must abide by the terms of the UnitedStates Constitution. U.S. Const. art VI, § 2.

2. The Use of an Inherent Sovereign Power

Defendant also claims that the State must exercise an act ofsovereignty to effectuate a taking. If the State is not acting as asovereign, defendant argues, then the State should be treated as anyother private individual would be. To be acting as a sovereign, defendantclaims, the State must exercise either its eminent domain power or itspolice power, neither of which it utilized here. This argument has nomerit. Unlike a private individual, the State must abide by the U.S.Constitution in its actions. U.S. Const. amend. XIV. Additionally, theState acquired an easement on behalf of the public, something that asovereign, but no private individual, can do. Furthermore, if the Stateis not using its police power or eminent domain power, then the Stateaction falls outside the public use requirement of the Takings Clause andthe State could not act on behalf of the public. See Hawaii Hous. Auth.,467 U.S. at 240 (holding that public use is synonymous with the state'spolice power).

3. Background Principles of State Law

Defendant also argues that because adverse possession and prescriptionare background principles of state property law, there can be no taking.Insofar as the State has engaged in a permanent physical occupation ofplaintiff's property, the Court need not delve into the state's backgroundprinciples of property law. See Lucas, 512 U.S. at 1027. Instead, theCourt must treat this as if the State took the property by eminentdomain. A background principle analysis is only required when thegovernment regulates out all economically beneficial use of theproperty. Id. Even if the background exceptions of property law appliedhere, no U.S. Supreme Court precedent establishes that the situationpresented here would fall under that exception. A background principle inproperty law exception occurs when a property right that was allegedlytaken is determined to have never been part of the property in dispute.See, e.g., Stevens, 854 P.2d at 456. Simply because a party had notice ofa law is not sufficient to render it a background principle. SeePalazzolo, 533 U.S. at 629-30. The property interest here was owned by aprivate entity and taken by the State, and therefore was always part ofthe property that plaintiff owned.

This Court concludes that plaintiff has alleged a takings claim thatwould normally be sufficient to survive a motion to dismiss. But thereare other principles applicable here.


Defendant makes various arguments that this claim is time-barred by thestatute of limitations. In general, 42 U.S.C. § 1983 governs claimsfor just compensation. City of Monterey, 526 U.S. at 710. Because §1983 does not contain its own statute of limitations, the Court mustexamine state law for a limitations period analogous to theconstitutional wrong asserted. Takings claims sound in tort. Id. at 709.The statute of limitations for a tort action in Rhode Island is threeyears. R.I. Gen. Laws § 9-1-14; see also Pearman v. Walker,512 F. Supp. 228, 234 (D.R.I. 1981) (holding that an action against aRhode Island municipality under § 1983 is governed by the statute oflimitations for personal injuries).

To determine if the claim is time-barred, this Court must determinewhen the taking occurred and when any takings claim accrued. Plaintiffargues that its takings claim did not begin to accrue until the RhodeIsland Supreme Court rendered its decision in 2001. Defendant argues thatthe takings claim accrued as soon as the State built the boat ramp in1965.

As already discussed, this Court holds that the taking occurred in1975, at the moment the property was adversely possessed and an easementby prescription was created.6 Prior to 1975, plaintiff had only a claimfor trespass against the state for the boat ramp. As to the use of theReservoir by the public, plaintiff had no claim against the state atall, but only against private individuals for trespass.

Concluding that the taking occurred in 1975 does not resolve the issueof whether this claim is time-barred. The Court must determine when atakings claim accrued. As this Court has already discussed, a takingsclaim is not ripe for federal court review until there is a finaldecision by the state court on the merits. Williamson, 473 U.S. at186-87. Determining when a claim is ripe for federal court review, inthis case however, does not answer whether this case is time-barred. In atypical takings case, if there is such a thing, the owner of the propertyhas control of the litigation-that is, the owner would be the plaintiffin both the state court and any federal court proceedings. For example,the owner would challenge a given state regulation in the state courts,and if plaintiff lost and the regulation was upheld, could proceed to thefederal courts to seek compensation. That plaintiff could appeal thestate court decision to the United States Supreme Court, if compensationhad been denied, or if the claim became ripe for lower federal courtreview, plaintiff could commence an action in a United States DistrictCourt. Williamson addressed this litigation scenario. 473 U.S. at 175.

In contrast, here, Pascoag was the defendant at the state level becausethe State sought a declaration of its rights. Pascoag did not have towait for the State to initiate its action before it had a cognizabletakings claim. Pascoag's predecessor in title had a number of remedies instate court in 1975, but took advantage of none of them. Pascoag'spredecessor could have sought to quiet title to establish that theprerequisite determination that the State had committed a takings hadoccurred. It could have sued for trespass and ejectment, prompting theState to raise the defense of adverse possession and prescription. Itcould have argued that based on the State's open and notoriousoccupancy, the State had engaged in a de facto condemnation of theproperty and sought compensation. In short, Pascoag's predecessor in titlein 1975 had a cause of action in state court for just compensation. Itdid not exercise that right. Instead,Pascoag and all its predecessors intitle sat idly by and waited for twenty-six years after the cause ofaction for just compensation accrued-until the State asserted its adversepossession and prescription claim. Pascoag's predecessor may not have hada ripe cause of action in federal court in 1975 but it did have a ripecause of action in state court in 1975 to determine its property rightsand seek just compensation. Indeed, any compensation due to plaintiff'spredecessor under the Takings Clause would have been the value of theproperty interests taken in 1975. That cause of action was time-barredyears ago.

The State's three year statute of limitations for personal injurybegins to run on the accrual of a tort claim. R.I. Gen. Laws §9-1-14. For these purposes, the claim accrued, or was ripe in statecourt, when plaintiff's predecessor was aware or should have been awareof the injury. Since the Rhode Island Supreme Court determined that theState's presence was open, notorious, and hostile, placing the then owneron notice of its presence, the owner should have been aware that thetaking had occurred. The statute of limitations began to accrue in 1975and the cause of action became time-barred in 1978.

This Court is well aware that a federal takings claim is ripe onlyafter a state court renders a final decision on the merits, and thestatute of limitations does not begin to run in a federal takings claimuntil the claim is ripe under federal law. See, e.g., New Port Largo,Inc. v. Monroe County, 985 F.2d 1488, 1493 (11th Cir. 1993). It would betruly bizarre, however, to allow this claim to proceed. For state lawpurposes, this claim is twenty-three years too old, yet it is only ripefor federal law purposes now. This Court cannot sanction such an absurdresult. Here, plaintiff and its predecessors in title, through repeatedinaction, let their rights fritter away. They had multiple chances totake control of the situation and failed to do so. This Court concludesthat because the underlying state claim for just compensation is barredby the statute of limitations, this federal claim is similarly barred bythe statute of limitations.

Even if this claim is not a cause of action at law that is barred bythe statute of limitations, the claim nonetheless would be barred by theequitable doctrine of laches. To reward plaintiff and its predecessors intitle for sleeping on their rights for twenty-six years offends thenotion that a party must come to an equity court with clean hands. SeeCodex Corp. v. Milgo Elec. Corp., 717 F.2d 622, 633 (1st Cir. 1983) ("Themaxim of `he who comes into equity must come with clean hands' ofnecessity gives wide range to a court's use of `discretion to withholdpunishment of behavior which it considers not to warrant so severe asanction.'") (quoting Norton Co. v. Carborundum Co., 530 F.2d 435, 442(1st Cir. 1976)). The Court cannot sanction proceeding with a claim thatis so utterly stale.

The claim, at the very least, is barred by the doctrine of laches. SeeLevald, Inc. v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993)(holding sua sponte dismissal is not erroneous when defense of statute oflimitations has not been waived); Street v. Vose, 936 F.2d 38, 39 (1stCir. 1991) (per curiam) (affirming sua sponte dismissal of complaint onstatute of limitations grounds). The doctrine of laches is an equitabledefense barring a claim for relief, prior to the running of thelimitations period, "where a party's delay in bringing suit was (1)unreasonable, and (2) resulted in prejudice to the opposing party."K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 911 (1st Cir. 1989).Clearly, a twenty-six year delay in bringing suit is unreasonable.Clearly, defendanthas been prejudiced by this twenty-six year delay. Thesituation as it existed in 1975 cannot be replicated in making adetermination of just compensation as of that time.

For all the reasons discussed, at this time, plaintiff cannot maintaina cause of action for just compensation for the taking that occurred in1975. This Court concludes that plaintiff's claim is barred by the tortstatute of limitations. If plaintiff's claim is deemed an equitable oneit would be barred by the doctrine of laches. Therefore, Count I of thecomplaint must be dismissed.


Counts II, III, and IV of plaintiff's complaint assert purely state lawclaims. This Court declines to exercise supplemental jurisdiction overthose claims. Supplemental jurisdiction allows a federal court to hearboth state and federal claims if they would ordinarily be expected to betried in one judicial proceeding. 28 U.S.C. § 1367(a). Supplementaljurisdiction, however, is discretionary. Penobscot Indian Nation v. KeyBank of Maine, 112 F.3d 538, 564 (1st Cir. 1997). As § 1367 states,the Court may decline to exercise jurisdiction if the Court has dismissedall claims over which it has original jurisdiction.

Here, because the Court has dismissed Count I, the only federal claimin the complaint, the Court declines to retain jurisdiction over theremaining state law claims. See id. Therefore, the state law claims aredismissed without prejudice.


Because Count I of plaintiff's complaint is time-barred, the Courtgrants defendant's motion to dismiss. As Count I is the only federalclaim asserted by plaintiff, the remaining state law claims contained inCounts II, III, and IV are dismissed without prejudice for lack offederal question jurisdiction.

The Clerk shall enter judgment for defendant to that effect,forthwith.

1. Although the complaint does not so state, the Court treats thisaction as though plaintiff brings it pursuant to 42 U.S.C. § 1983.

2. The portion of the Reservoir bottom that the State adverselypossessed is the portion that lies under the part of the boat ramp thatextends into the Reservoir.

3. "Conclusive title by peaceful possession under claim of title.— Where any person or persons, or others from whom he, she or theyderive their title, either by themselves, tenants, or lessees, shall havebeen for the space of ten (10) years in the uninterrupted, quiet,peaceful and actual seisin and possession of any lands, tenements orhereditaments for and during that time, claiming the same as his, her ortheir proper, sole and rightful estate in fee simple, the actual seisinand possession shall be allowed to give and make a good and rightfultitle to the person or persons, their heirs and assigns forever; and anyplaintiff suing for the recovery of any such lands may rely upon thepossession as a conclusive title thereto, and this chapter being pleadedin bar to any action that shall be brought for the lands, tenements orhereditaments and the actual seisin and possession being duly proved,shall be allowed to be good, valid and effectual in law for barring theaction." R.I. Gen. Laws § 34-7-1.

4. Following this section of the Restatement, the comments elaborateon the notion of a court expressly reserving the right to maintain asecond action. "A determination by the court that its judgment is`without prejudice' (or words to that effect) to a second action on theomitted part of the claim, expressed in the judgment itself, or in thefindings of fact, conclusions of law, opinion, or similar record, unlessreserved or set aside, should ordinarily be given effect in the secondaction." Restatement 2d on Judgments § 26(1)(b) cmt. b.

5. This Court notes that Rhode Island Supreme Court decisions oncollateral estoppel or issue preclusion only discuss issue preclusion asit relates to questions of fact, not questions of law. See, e.g.,Jenkins, 673 A.2d at 1096; Audet 635 A.2d at 1186. The Restatement 2d ofJudgments, on the other hand, discusses issue preclusion in the contextof both issues of fact and law. Restatement 2d of Judgments § 27. Theapplicable statute of limitations period is, of course, a question oflaw.

6. Even if the placement of the boat ramp constituted a permanentphysical occupation of plaintiff's property and resulted in a taking atthat time, that fact would not change the determination of the date thatthe taking by adverse possession occurred. This Court is not faced with aclaim based on the presence of the boat ramp, but a claim based in theState's acquisition of the title to the land under the boat ramp byadverse possession. These are two distinct events.

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