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


This lawsuit is the latest chapter in a contentious disputebetween the State of Rhode Island ("State") through theDepartment of Environmental Management ("DEM") and PascoagReservoir & Dam, LLC ("Pascoag"). Plaintiff, Pascoag, claimsthat the State has engaged in a taking of its property, and thatthe United States and Rhode Island Constitutions mandate thatcompensation be paid to it for that property.1 The takingof property, Pascoag alleges, was the acquisition of a portionof the Reservoir bottom by adverse possession and theacquisition of use of the Reservoir by prescriptive easement.The State has moved to dismiss the complaint, claiming that, asa matter of law, when a state acquires property by adversepossession or prescription that does not constitute a taking.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 betweenproperty law and constitutional law. In property law, it is astraightforward proposition that, under certain conditions,title to property may, by operation of law, be transferred toanother without compensation. In constitutional law, it is astraightforward proposition that the government cannot takeprivate property without just compensation. This Court mustdetermine how these two propositions interact with each other.Although defendant contends that the two areas of law are"mutually exclusive," they are not. Any state statute mustadhere to the requirements of the United States Constitution. Inthis case, the Court concludes that plaintiff has alleged atakings claim against the State of Rhode Island. Since the Courtholds that the taking occurred in 1975, plaintiffs claim,asserted twenty-six years after the taking, is too stale towarrant prosecution. Therefore, plaintiffs federal takings claimis dismissed. Plaintiffs remaining state law claims are alsodismissed but without prejudice becausethis Court declines to exercise supplemental jurisdiction overthose state claims.


This complaint was filed in this Federal District Court onOctober 18, 2001. The complaint asserts four claims against theState. Count I alleges that the State has violated the TakingsClause of the Fifth and Fourteenth Amendments to the UnitedStates Constitution. Count II alleges that the State hasviolated the Takings Clause of the Rhode Island Constitution.Count III seeks a declaratory ruling that the State isresponsible for the repair, maintenance, and upkeep of thePascoag Reservoir and dam. Count IV seeks reimbursement for anylocal taxes and assessments paid to the Towns of Burrillvilleand Glocester, and any local fire districts. With the exceptionof Count I, plaintiffs claims are based on state law. Defendanthas moved to dismiss the whole complaint for failure to state aclaim upon which relief can be granted.


As plaintiff has alleged a constitutional violation in CountI, this Court's jurisdiction is based on the federal questionraised in the complaint. 28 U.S.C. § 1331. The constitutionalviolation stems from the Fifth and Fourteenth Amendments to theU.S. Constitution. 28 U.S.C. § 2201, 2202 provides a form ofrelief, declaratory judgment, for such violations. Becauseplaintiff seeks damages for a violation of a constitutionalright, the Court treats this action as brought pursuant to42 U.S.C. § 1983. As the remaining counts are state 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 claimupon which relief can be granted, the Court construes thecomplaint in the light most favorable to plaintiff, taking allwell-pleaded allegations as true and giving plaintiff thebenefit of all reasonable inferences. Fed.R.Civ.P. 12(b)(6);Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1stCir. 1990). Because a 12(b)(6) motion often comes in the earlystages of the litigation, dismissal under Rule 12(b)(6) isappropriate only if "it appears beyond doubt that the plaintiffcan prove no set of facts in support of his claim which wouldentitle him to relief." Judge v. City of Lowell, 160 F.3d 67,72 (1st Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41,45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

In a Rule 12(b)(6) motion, the Court generally may examineonly the pleading itself. In a notice pleading system, thepleading serves to inform defendant of the claims made againsthim or her. Langadinos, 199 F.3d at 72-73. The Court need notaccept unsupported conclusions or interpretations of law.Washington Legal Found. v. Massachusetts Bar Found.,993 F.2d 962, 971 (1st Cir. 1993). If the pleading fails to make out alegal claim upon which relief can be granted or fails to allegeany facts that would support a legal claim, the pleading isinsufficient and should be dismissed. See Correa-Martinez, 903F.2d at 52-53.


A. Facts as Plaintiff Alleges

The complaint alleges the following facts. Pascoag is theowner of record of the Pascoag Reservoir ("Reservoir"). TheReservoir is located in the Towns of Burrillville and Glocester,Rhode Island. The Reservoir is a man-made body of waterconsisting of approximately 350 acres, originally created in1860 by various riparian mill owners as a source of power fortheir mills. Plaintiffs predecessors in titlehave been the Pascoag Reservoir Association, the PascoagReservoir Corporation, and the Pascoag Investment Corporation.In 1965, the State constructed a boat ramp into the Reservoir.In 1995, title to the Reservoir in fee simple was conveyed toplaintiff. Intermittently, between 1987 and 1997 the Stateunsuccessfully negotiated to buy the Reservoir. In 1997, DEMnotified Pascoag in writing that the State had acquired aninterest in the Reservoir by adverse possession or prescription.DEM then filed suit in Rhode Island Superior Court to enforceits claim.

B. Determinations of State Law

On June 20, 2001, the Rhode Island Supreme Court held that theState had acquired portions of the Reservoir bottom by adversepossession2 and had acquired, on behalf of the public, aprescriptive easement to use the boat ramp to obtain access tothe Reservoir for recreational purposes. Reitsma v. PascoagReservoir & Dam, LLC, 774 A.2d 826, 838 (R.I. 2001) (3-2)(overruling the trial court). The effect of that decision, andparticularly the finding of a public easement by prescription,is to prevent the drainage or alteration of the Reservoir byplaintiff and to allow the public continuous access to theReservoir for recreational use. The Supreme Court held that theState had begun to use the Reservoir property in 1965 and, underthe Rhode Island ten year adverse possession statute, hadacquired title to a portion of the Reservoir plus an easement in1975. Id.

C. Adverse Possession and Easement by Prescription

Adverse possession and prescriptive easements are creatures ofstate law, not federal law. Chapter 7 of Title 34 of the RhodeIsland General Laws sets forth the statutory definition ofadverse possession and prescription.3 Adverse possessionis a method of transferring title in fee simple of a portion ofreal property. Certain conditions must be maintained over aperiod of time set by statute. R.I. Gen. Laws § 34-7-1. In RhodeIsland, to complete a transfer of title by adverse possession,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). Thepossession must be over ten years, the statutory period foradverse possession. R.I. Gen. Laws § 34-7-1. Similarly,prescription is a method of creating an easement by comparablecriteria as adverse possession. The creation of an easement byprescription is the creation of a right to use and title to usethat cannot be revoked. Greenwood v. Rahill, 122 R.I. 759,412 A.2d 228, 230 (1980) ("Once the state had acquired aprescriptiveeasement . . ., no act of plaintiffs could divest the state ofthat right since such an easement conveys a good and rightfultitle forever.").

Adverse possession is an ancient English common law doctrineto clarify title in land. Tiffany Real Property § 1133 (3d ed.1975). The defense of adverse possession acted as a bar toejectment actions. Although various forms of adverse possessionappeared in English law as early as 1100 A.D., the current formof adverse possession-a fixed number of years operating as astatute of limitation against claims to land-was adopted by theStatute of James in 1623. Id. After a certain period of time,claims to land can no longer be asserted, thus preventing"illegal claims after the evidence necessary to defeat them hasbeen lost" and advancing the community's interest in "thesecurity of title." Id. at § 1134. Furthermore, adversepossession discourages record owners from "sleeping on theirrights" by neglecting to take the appropriate legal steps tomaintain their possession. See id.

An easement is a right to use another's property in a certainmanner that simultaneously acts as a limitation on that otherperson's ability to use his or her property in an unrestrictedmanner. II American Law of Property § 8.4 (1952). It is aproperty right against the subjected land as well as all otherparties. Id. at § 8.5. It cannot be terminated by thepossessor of the land subject to it. Id. at § 8.14. Anappurtenat easement is an easement that is tied to a specificparcel of land and is not a personal right. Tiffany RealProperty § 1193. The easement benefits that land and thepossessor's use and enjoyment of that land. Here, the easementis appurtenant to the parcel of land that was adverselypossessed by the State. One can only acquire a prescriptiveright 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 bythe State. Id. at § 1192.

Under Rhode Island law, the State may acquire title by adversepossession or prescription. Reitsma, 774 A.2d at 838 (stateacquires title by adverse possession and easement byprescription); Greenwood, 412 A.2d at 230 (state acquireseasement by prescription). Additionally, the United StatesSupreme Court has held that officers of the United States, suedfor trespass, may raise a defense of lawful title by adversepossession. Stanley v. Schwalby, 147 U.S. 508, 519, 13 S.Ct.418, 37 L.Ed. 259 (1893).


As a preliminary matter, this Court must define the narrowscope of the legal issue that this Court may consider.Additionally, the Court must resolve some affirmative defensesalluded to by defendant. Defendant argues that the doctrine ofres judicata bars plaintiff from pursuing this action becausethe takings issue and the statute of limitations issue weredetermined by the Rhode Island Supreme Court. At the hearing onthis motion, defendant also argued that the Rooker-Feldmandoctrine prohibits this federal court from reviewing the statecourt decision. Plaintiff argues that the takings issue wasnever properly before the Rhode Island Supreme Court, and thatany statements made on the takings issue by the Rhode IslandSupreme Court should be disregarded as dicta. In addition, as ajurisdictional prerequisite, this Court must determine if thisissue is ripe for a federal court's consideration.

A. Conclusions of State Law

This Court cannot revisit the conclusion of the Rhode IslandState SupremeCourt on an issue of state law. Erie R.R. Co. v. Tompkins,304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ("Except inmatters governed by the Federal Constitution or by Acts ofCongress, the law to be applied in any case is the law of theState."). A state Supreme Court has the final word on whatconstitutes adverse possession or easement by prescription. Seeid. The precise issue of adverse possession and prescription inthis case has been litigated and determined by the Supreme Courtof Rhode Island. Reitsma, 774 A.2d at 838. Principles of resjudicata apply. This Court cannot revisit the Rhode IslandSupreme Court's holding that the State acquired title in feesimple by adverse possession and an easement by prescription.This Court can only address the consequences of the Stateacquiring title to a piece of land by adverse possession and aneasement by prescription. See Erie R.R. Co., 304 U.S. at 78,58 S.Ct. 817.

B. Claim Preclusion

The doctrine of res judicata is a bar to a party litigatinganew issues that have already been decided by a court. Defendantargues that plaintiff is precluded from litigating the takingsclaim because it was raised in a prior state court proceeding.Res judicata is a term that applies to two types of preclusion,claim preclusion and issue preclusion. Liu v. Striuli,36 F. Supp.2d 452, 470-71 (R.I. 1999). When a federal court examineswhether a state court decision has a preclusive effect, thefederal 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 must apply state law to determine if res judicataapplies. See id

Claim preclusion acts as a bar to plaintiff taking a secondbite at the apple through subsequent litigation. ElGabri v.Lekas, 681 A.2d 271, 276 (R.I. 1996) (adopting Restatement 2dof Judgments § 24). Claim preclusion encourages finality andconsistency in judicial rulings. The Restatement sets forth therequirements for claim preclusion: "When a valid and finaljudgment rendered in an action extinguishes the plaintiffs claimpursuant to the rules of merger or bar, the claim extinguishedincludes all rights of the plaintiff to remedies against thedefendant with respect to all or any part of the transaction, orseries of connected transactions, out of which the actionarose." Restatement 2d of Judgments § 24(1). In this case, theState is seeking to bar plaintiff from relitigating an issuethat it raised as a counterclaim in state court.

Claim preclusion does not apply when a court reserves aparty's right to maintain a second action, as happens when acourt dismisses a claim without prejudice. "When any of thefollowing circumstances exists, the general rule of § 24 doesnot apply to extinguish the claim, and part or all of the claimsubsists as a possible basis for a second action by theplaintiff against the defendant: . . . (b) The court in thefirst action has expressly reserved the plaintiffs right tomaintain the second action." Restatement 2d of Judgments §26(1)(b).4 Here, the state trial court dismissed Pascoag'stakingscounterclaim without prejudice. Reitsma, 774 A.2d at 837.Pascoag notified the state court that it was preserving theissue for subsequent action and, thus, avoided the effects ofclaim 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 toPascoag's takings claim. No court entered a judgment on thetakings claim. See Pure Distributors, Inc. v. Baker,285 F.3d 150, 156-57 (1st Cir. 2002) (discussing the finalityrequirement). Pascoag raised the claim before the state court,but, as the Rhode Island Supreme Court noted in Reitsma,Pascoag's takings claim was dismissed without prejudice. 774A.2d at 837. The Rhode Island Supreme Court does speculate thatany takings claim would be barred by the statute of limitations.Id. at 838. Since that issue was not properly before theCourt, however, any dicta on the takings issue is not a finaljudgment on the merits. See Pure Distributors, Inc., 285 F.3dat 156-57. Claim preclusion does not bar this lawsuit.

C. Issue Preclusion

Defendant additionally argues that issue preclusion preventsPascoag from revisiting a determination that the statute oflimitations bars plaintiffs takings claim. The Rhode IslandSupreme Court adopted the following requirements for issuepreclusion or collateral estoppel to apply: "(1) that there mustbe an identity of issues, (2) that the prior proceeding resultedin a final judgment on the merits, and (3) that the partyagainst whom collateral estoppel is asserted is the same as oris in privity with a party in the prior proceeding." State v.Jenkins, 673 A.2d 1094, 1096 (R.I. 1996). For an identity ofissues to exist, "(1) the issue sought to be precluded must beidentical to the issue determined in the earlier proceeding, (2)the issue must actually have been litigated in the priorproceeding, and (3) the issue must necessarily have beendecided." E.W. Audet & Sons, Inc. v. Firemen's Fund Ins. Co.,635 A.2d 1181, 1186 (R.I. 1994).

As discussed supra, the statements made by the Rhode IslandSupreme Court about the takings claim, including any statementsconcerning the statute of limitations, are not part of a finaljudgment and are not essential to that Court's judgment as thematter was not properly before that Court. Therefore, the issuewas not actually litigated nor was it decided. See id. Issuepreclusion does not bar plaintiffs takings claim in thiscase.5

D. Rooker-Feldman Doctrine

The Rooker-Feldman doctrine is a basic principle of subjectmatter jurisdiction that federal district courts should notserve as appellate courts to state courts. See, e.g., Wilson v.Shumway, 264 F.3d 120, 123-26 (1st Cir. 2001) (discussing theRooker Feldman Doctrine). The only appropriate federal appellatecourt to a state court is the United States Supreme Court. 123; see also Keating v. Rhode Island, 785 F. Supp. 1094,1098 (R.I. 1992). Therefore, a federal district court should notreview issues already determined by a state court. Even if theclaim was not presented to a state court,the Rooker Feldman doctrine "forecloses lower federal courtjurisdiction over claims that are `inextricably intertwined'with the claims adjudicated in a state court." 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 situationwhere the federal claim can only succeed if the state courtclaim fails. Id. In other words, the federal court would haveto reverse the state court for the federal claim to prevail.Id.

Here, the Rooker Feldman doctrine is not a bar to thislitigation. See id. For the takings claim to succeed it is notnecessary to reverse any part of the state court's decision.See id. It is precisely the issue of whether adversepossession or prescription constitutes a taking that Pascoagseeks to litigate here. If the state court's decision on theadverse possession and easement by prescription issue were to bereversed, plaintiffs takings claim could not be before thisCourt. See id. Plaintiff would be in possession of all of theproperty in question. The two claims, therefore, are notinextricably intertwined, and the Rooker-Feldman doctrine doesnot apply. See id. Furthermore, as the Rhode Island courts didnot fully adjudicate and determine the question, the UnitedStates Supreme Court would not be able to review the decisionmade in Reitsma because that issue would not be ripe forSupreme Court review. See, e.g., Yee v. City of Escondido,503 U.S. 519, 537-38, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992)(declining to review a regulatory takings claim for lack ofripeness).

E. Ripeness Doctrine

In the State's unwavering determination to argue thatplaintiffs claims are stale or that the dispute has already beendecided, the State ignores the argument that the claim may bepremature. The United States Supreme Court has set forth certainripeness requirements for a takings claim to be brought infederal court. See Williamson County Reg'l Planning Comm'n v.Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 87 126(1985).

If a case is not "ripe", then this Court generally lacksjurisdiction over the matter. Faerber v. City of Newport,51 F. Supp.2d 115, 124 (R.I. 1999). If the dispute is not ripe, thenthe Court would be engaged in abstract disagreements overmatters that "may not occur as anticipated or may not occur atall." Id. (quoting Riva v. Massachusetts, 61 F.3d 1003, 1009(1st Cir. 1995)). Thus, the Court would be rendering a mereadvisory opinion. Such advisory opinions are prohibited byArticle 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 (1stCir. 1995). Because ripeness is part of the jurisdictionalprerequisite for review, this Court is compelled to discuss theripeness doctrine as it pertains to the Takings Clause of theConstitution despite the fact that defendant did not raise orbrief the issue. See Fed.R.Civ.P. 12(h)(3) (Court must dismissaction sua sponte for lack of subject matter jurisdiction).Plaintiff did, however, make an anticipatory argument in itsobjection to the motion to dismiss.

In Williamson, the Supreme Court set forth two requirementsbefore a takings claim is ripe for federal court review. 473U.S. at 186, 105 S.Ct. 3108. First, a party must obtain a finaldecision regarding the property interest. Id. Second, a partymust utilize the state procedures for obtaining justcompensation. Id. If those two requirements are not met, thetakings claim is not ripe for review. Id. The first prong ofthe Williamson ripenesstest is satisfied. The Rhode Island Supreme Court issued a finaldecision regarding the property right. Reitsma, 774 A.2d at838. The second prong of the test, whether the state proceduresfor compensation have been utilized, is not as straightforward.See Williamson, 473 U.S. at 194, 105 S.Ct. 3108. The stateprocedures must be utilized because the Constitution does notprohibit the state from taking property, it only prohibits thestate from taking property and not paying just compensation.Id. at 194-95, 105 S.Ct. 3108.

If compensation is paid, even at a date after the taking ofthe property, then there is no violation of the Constitution andno dispute for the Court to resolve. See id. at 195, 105 S.Ct.3108. If the state lacks procedures, or its procedures areinadequate, then the takings claim would be ripe for review infederal court. See id. at 197, 105 S.Ct. 3108; McKenzie v.City of White Hall, 112 F.3d 313, 317 (8th Cir. 1997) (notingthat plaintiff had failed to establish that a state inversecondemnation action would be futile). State procedures would beinadequate when the state's highest court denies thatcompensation could be available for the government's action thataffected a property interest. See First English EvangelicalLutheran Church v. County of Los Angeles, 482 U.S. 304, 312 n.6, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987).

The situation presented here is unlike the scenario this Courtfaced in Q.C. Const. Co. Inc. v. Verrengia, 700 F. Supp. 86, 90(R.I. 1988). There, plaintiff had failed to establish that thestate supreme court would refuse to acknowledge that inversecondemnation could be determined to be a taking and providecompensation. Id. This Court noted that although the RhodeIsland Supreme Court had not determined that a person could seekcompensation for an inverse condemnation claim under state law,that Court had similarly not ruled that such a claim forcompensation would not be allowed. Id. The Court distinguishedthat situation from the facts presented in First English where"plaintiff had been effectively denied compensation by thehighest state court." Id. Because plaintiffs there had notattempted to seek compensation in state court, the claim waspremature. Id. at 91; see also Deniz v. Municipality ofGuaynabo, 285 F.3d 142, 147 (1st Cir. 2002) (dismissing takingsclaim filed in federal court on ripeness grounds when questionof whether compensation was available had not been decided bythe state's highest court).

Plaintiff argues that if an effort to obtain compensation fromthe State would be futile or otherwise unavailable, the ripenessrequirement is satisfied. Plaintiff contends that because theState did not take property until the Rhode Island Supreme Courtissued its ruling, it could not have sought compensation priorto that ruling. Additionally, plaintiff contends that becausethat ruling contains dicta that the State engaged in no takingof property, any effort to seek compensation under stateprocedures would be futile. Because further proceedings at thestate level would be futile, plaintiff argues, the claim is ripefor review here in federal court.

Although plaintiff initially sought compensation in the RhodeIsland state court system, the claim was dismissed withoutprejudice. Reitsma, 774 A.2d at 837. Subsequent to thatdismissal, the Rhode Island Supreme Court intimated that when astate acquires property by adverse possession or an easement byprescription, the record owner has no cognizable takings claim.Id. at 837-38 (noting that even if a takings claim existedhere, it would be time-barred). Thus, the Rhode Island SupremeCourt has effectively barred any avenue for plaintiff to securecompensationin state court. See id. If the state has no procedures bywhich a party can seek compensation as a post-depravationremedy, the second prong of Williamson is satisfied and thecase is ripe for review by a federal court. See 473 U.S. at197, 105 S.Ct. 3108; see also City of Monterey v. Del MonteDunes at Monterey, Ltd., 526 U.S. 687, 721, 119 S.Ct. 1624, 143L.Ed.2d 882 (1999) ("A federal court, moreover, cannot entertaina takings claim under § 1983 unless or until the complaininglandowner has been denied an adequate post-deprivationremedy.").


Plaintiff alleges that the State, when it acquired an easementby prescription and a portion of the Reservoir bottom by adversepossession, violated plaintiffs rights under the Takings Clauseof the Fifth and Fourteenth amendments of the United StatesConstitution. Defendant moves to dismiss arguing that, as amatter of law, when the State acquires title by adversepossession and/or an easement by prescription, the State is notsubject to the Takings Clause.

Therefore, the primary question before this Court is whetherthe acquisition of property interests by a state through adversepossession and prescription is subject to the Takings Clause ofthe United States Constitution. No federal court has addressedthis question before. Several state courts, however, havediscussed this issue. This Court notes at the onset thatplaintiff is not challenging the State's ability to acquiretitle to property by adverse possession or prescription. As amatter of state law, the Rhode Island Supreme Court hasdetermined that the state may acquire title to property in thismanner. Reitsma, 774 A.2d at 838. This Court must onlydetermine if just compensation is payable. As this is a motionto dismiss at the preliminary stages of litigation, the Courtcan only determine if plaintiff has alleged a sufficient takingsclaim in its complaint to warrant further proceedings.

A. Federal Takings Clause

The Fifth Amendment of the Constitution states that "privateproperty shall not be taken for public use, without justcompensation." U.S. Const. amend. V. The Fifth Amendment appliesto the Federal Government. The Fourteenth Amendment, whichapplies to the states, does not contain the same Takings Clause;the Due Process Clause therein differs in that it does notmention just compensation. U.S. Const. amend. XIV. Nevertheless,the Takings Clause of the Fifth Amendment has been incorporatedinto the Fourteenth Amendment. Chicago, B & Q. R.R. Co. v. Cityof Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 41 L.Ed. 979(1897). Therefore, the Takings Clause via incorporation appliesto the states. See id.

The Takings Clause generally has been held to apply to twotypes of governmental action: the taking of property by thegovernment's eminent domain power and the taking of property byinverse condemnation. The power of eminent domain is an inherentsovereign power. See Tiffany Real Property § 1252. Eminentdomain allows the government to take private property, for thebenefit of the public, when compensation is paid. Id. Inversecondemnation occurs when government regulation, in effect,condemns some or all of the use of the property, diminishing thevalue to its owners to such an extent that it is as if thegovernment had condemned the property. As Justice Oliver WendellHolmes wrote eighty years ago in a seminal takings case: "Thegeneral rule at least is, that while property may be regulatedto a certain extent, if regulation goes too far it will berecognized as a taking." Pennsylvania Coal Co. v. Mahon,260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). Inversecondemnation thus leads to the de facto taking by eminent domainthrough the state's power to regulate, whereas a taking by theeminent domain power is an explicit use of the sovereign power.See City of Monterey, 526 U.S. at 734-35, 119 S.Ct. 1624(Souter J., concurring in part and dissenting in part) (notingthat "the ultimate issue [of compensation] is identical in bothdirect and inverse condemnation actions.").

1. Elements of a Takings Claim

In a federal Takings Clause analysis, plaintiff must establishthat property was taken by the government for public use withoutjust compensation. U.S. Const. amend. V. The Fifth Amendmentdoes not mandate that government cannot interfere with propertyrights, rather it mandates that the government must provide justcompensation when an "otherwise proper interference amount[s] toa taking." First English, 482 U.S. at 315, 107 S.Ct. 2378.Thus, in an inverse condemnation case, the statute or regulationat issue is not invalidated, but the remedy is, in somesituations, that compensation must be paid by the government tothe property owner. See id. Thus, it is the Fifth Amendmentthat provides the remedy for an interference with propertyrights that rises to the level of a taking. See id. at 314-16& n. 9, 107 S.Ct. 2378. The government does have the option,once a taking is judicially determined, to cease interferingwith the property and pay compensation only for a "temporary"taking, but not for any subsequent "permanent" taking. See 318, 107 S.Ct. 2378.

Many of the most complicated taking issues revolve around theconcept of what the property interest is that was taken. Here,the property interest is straightforward. The property interestis the ownership of real property in fee simple and theownership of an easement over another's property. Reitsma, 774A.2d at 838. These are both classic property interests in land.This is not a case where government regulation leaves theproperty in the hands of the record owner, but the property hasbeen so diminished by governmental regulation that there was ade facto taking of property. See Penn Central Transp. Co. v.New York City, 438 U.S. 104, 124-27, 98 S.Ct. 2646, 57 L.Ed.2d631 (1978).

For a takings claim to be prosecuted, the government must havetaken the property interest. Here, by operation of law, title tothese property interests was transferred to the State from aprivate entity. Reitsma, 774 A.2d at 838. The State hasacquired title to the land in fee simple. The State has alsoacquired title to an easement by prescription.

The third element of a takings claim is that the taking mustbe for a public use. The public use requirement is generallyviewed as a restriction on the government's eminent domainpower. Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 239-42,104 S.Ct. 2321, 81 L.Ed.2d 186 (1984) (discussing the public userequirement). The government cannot use that power unless itsuse is for the benefit of the public. Id. at 248, 104 S.Ct.2321 (defining public use, however, as reaching to the fullextent of the state's police power). Here, the State has takenthe property interests specifically on behalf of the public forpublic use. This fact distinguishes this case from others whereby operation of law title to land is transferred from oneprivate entity to another for the benefit of the other.

In this case, title has been transferred from a private entityto the State for the benefit of the public. The State is thusacquiring title expressly for the benefit of the public. TheRhode Island Supreme Court explicitly stated that was how theState was able to adversely possess the property and acquire aneasement over the Reservoir. Reitsma, 774 A.2d at 838.

2. United States Supreme Court Takings Clause Decisions

Over the last twenty years, the United States Supreme Courthas addressed governmental takings in great detail, developing amap for this Court to follow. The Supreme Court recognized thatthere are two types of per se takings where compensation ismandated. The first type is where governmental action hasresulted in a permanent physical occupation of the property.Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,441, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). The second type ofper se taking occurs when governmental regulation denies theowner of virtually all economically beneficial use of theproperty. Lucas v. South Carolina Coastal Council,505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). In each ofthese instances, just compensation is required. It is of littleconsequence that the governmental invasion is small or that thepublic purpose served is great. Even where there is no per setaking, there may still be a regulatory taking, but the Courtmust engage in an ad hoc factual inquiry to determine if justcompensation is due. Penn Central, 438 U.S. at 124, 98 S.Ct.2646.

Although the government may have admirable goals of land useregulation, the government's power to advance these goals issubject to the limits imposed by the Takings Clause. See Dolanv. City of Tigard, 512 U.S. 374, 396, 114 S.Ct. 2309, 129L.Ed.2d 304 (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 perse rules serve "to bar Government from forcing some people aloneto bear public burdens which, in all fairness and justice,should be borne by the public as a whole." Nollan v. CaliforniaCoastal Comm'n, 483 U.S. 825, 835 n. 4, 107 S.Ct. 3141, 97L.Ed.2d 677 (1987) (quoting Armstrong v. United States,364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)).Additionally, these limitations on the exercise of governmentalpower prevent a state from "sidestepp[ing] the Takings Clause bydisavowing traditional property interests long recognized understate law." Phillips v. Washington Legal Found., 524 U.S. 156,157, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998).

A permanent physical occupation does not merely restrict theuse of property, but results in the "practical ouster of hispossession." Loretto, 458 U.S. at 428, 102 S.Ct. 3164 (quotingNorthern Transp. Co. v. Chicago, 99 U.S. 635, 642, 25 L.Ed.336 (1878)). It does not matter that the occupation may be smallor that the occupation does not "seriously interfere with thelandowner's use of the rest of his land." Id. at 430, 102S.Ct. 3164. In Loretto, the Supreme Court cited cases wherethe Court had found that a permanent physical occupation was theequivalent of a governmental taking of ownership to theproperty. See e.g., id. at 430, 102 S.Ct. 3164 ("It would beas complete as if the United States had entered upon the surfaceof the land and taken exclusive possession of it.") (quotingUnited States v. Causby, 328 U.S. 256, 261, 66 S.Ct. 1062, 90L.Ed. 1206 (1946)); id. at 431, 102 S.Ct. 3164 ("[B]ecausethere had been `an actual taking of possession and control,' thetaking was as clear as if the Government held full title andownership.") (quoting United States v. Pewee Coal Co.,341 U.S. 114, 116, 71 S.Ct. 670, 95 L.Ed. 809 (1951)); accordPalazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448,150 L.Ed.2d 592 (2001) ("The clearest sort of taking occurs whenthe government encroaches upon or occupies private land for itsown proposed use.").

The Supreme Court continued its explication of the nature of apermanent physical occupation by discussing how such anoccupation interferes with the property rights traditionallyassociated with ownership of real property. Loretto, 458 435-36, 102 S.Ct. 3164. The Court noted that, in the case ofa permanent physical occupation, "the government does not simplytake a single `strand' from the `bundle' of the property rights:it chops through the bundle, taking a slice of every strand."Id. at 435, 102 S.Ct. 3164. The rights at issue are the rightsto possess, use, and dispose of property. Id. The owner isdenied the power to exclude others from the property. Id. "Thepower to exclude has traditionally been considered one of themost treasured strands in an owner's bundle of property rights."Id. (citing Kaiser Aetna v. United States, 444 U.S. 164,179-80, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979)). In KaiserAetna, the Court held that a navigational servitude that gaveaccess to the public to a private pond was a constitutionaltaking that required just compensation. 444 U.S. at 179-80, 100S.Ct. 383 ("In this case, we hold that the `right to exclude,'so universally held to be a fundamental element of the propertyright, falls within this category of interests that theGovernment cannot take without compensation."). Related to thepower to exclude, a permanent physical occupation denies theowner the power to control the use of the property. Loretto,458 U.S. at 436, 102 S.Ct. 3164. Additionally, the occupationeffectively strips from the owner the power to dispose of theproperty because it will "empty the right of any value, sincethe purchaser will also be unable to make any use of theproperty." Id. Finally, the Court stated that when the actionof the government allows a stranger to invade directly andoccupy the property, there is a "special kind of injury." Id.

In Nollan, the United States Supreme Court ruled that apublic easement was a permanent physical occupation for thepurposes of the per se taking rule of Loretto. 483 U.S. at831-32, 107 S.Ct. 3141. The Court stated that a taking occurs"for the purposes of that rule, where individuals are given apermanent and continuous right to pass to and fro, so that thereal property may continuously be traversed, even though noparticular individual is permitted to station himselfpermanently upon the premises." Id. at 832, 107 S.Ct. 3141;see also Kaiser Aetna, 444 U.S. at 180, 100 S.Ct. 383 ("Andeven if the Government physically invades only an easement inproperty, it must nonetheless pay just compensation."); but seePruneYard Shopping Center v. Robins, 447 U.S. 74, 82-85, 100S.Ct. 2035, 64 L.Ed.2d 741 (1980) (concluding that the right toexclude students collecting signatures for petitions was notessential to the property right of a shopping mall when it couldrestrict the activity with reasonable time, place, and mannerregulations).

The other per se taking occurs when governmental action deniesthe property owner of all economically beneficial use. SeeLucas, 505 U.S. at 1015, 112 S.Ct. 2886. In Lucas, theSupreme Court offered a rationale for this per se rule: "theheightened risk that private property is being pressed into someform of public service under the guise of mitigating seriouspublic harm." Id. at 1018, 112 S.Ct. 2886. The Court explainedthat where all economically beneficial use of land is denied,the state can only deny compensation when the interests that thestate proscribes were never part of the owner's title. Id at1027, 112 S.Ct. 2886. In U.S.Supreme Court parlance, this means that if the state action ispart of the state's background principles of property law andnuisance law, no compensation is due. Id. at 1029, 112 S.Ct.2886 ("Any limitation so severe cannot be newly legislated ordecreed (without compensation) but must inhere in the titleitself.").

Lucas contains little specific guidance on what supportsthese background principles of law. The Court stated that "[a]law or decree with such an effect must, in other words, do nomore than duplicate the result that could have been achieved inthe courts-by adjacent landowners (or other uniquely affectedpersons) under the State's law of private nuisance, or by theState under its complementary power to abate nuisances thataffect the public generally, or otherwise." Id. The Court gavea few examples. When the state takes property by necessity tostop a fire, no compensation is due. Id. at 1029 n. 16, 112S.Ct. 2886. When the state denies a permit to fill in a lake-bedthat would have the effect of flooding others' land, nocompensation is due. Id. at 1029, 112 S.Ct. 2886. When thestate orders a nuclear plant to cease operations because it issituated on an earthquake fault, no compensation is due. Id.These, however, are all examples of nuisance and not otherbackground principles of property law. With respect to propertylaw, the Court cautioned however, that the state may not simplyrecast its action as a background principle of state law. 1031, 112 S.Ct. 2886 ("State, by ipse dixit, may nottransform private property into public property withoutcompensation.") (quoting Webb's Fabulous Pharmacies, Inc. v.Beckwith, 449 U.S. 155, 164, 101 S.Ct. 446, 66 L.Ed.2d 358(1980)). Instead, the state carries the burden of proving thatthe background principles allow a certain result. Id.

In a subsequent decision, the Court has explained that abackground principle of property law is not simply any law orregulation that was in effect prior to an owner acquiring title.Palazzolo, 533 U.S. at 629-30, 121 S.Ct. 2448. A backgroundprinciple must be more than a preexisting regulation. See id.Some courts have ruled that the law of public trust and the lawof custom are background principles because land held in publictrust or by custom was never part of a landowner's title. See,e.g., Stevens v. City of Cannon Beach, 317 Or. 131,854 P.2d 449, 456 (Or. 1993) (holding that by custom the public hadalways held the dry sand beach in fee simple absolute and thatarea was never part of the landowner's title); Orion Corp. v.State, 109 Wn.2d 621, 747 P.2d 1062, 1073 (1987) (holdingthat state's shoreline was held in public trust and anyrestrictions on use mandated by the public trust doctrine couldnot be a taking).

B. Analysis

Here, the State has acquired title to a portion of the bottomof the Reservoir and an easement by prescription on behalf ofthe public to use the Reservoir for recreational purposes. TheState did not act through its eminent domain power. The State,instead, utilized the adverse possession statute to acquirethese property rights. Thus, this claim is a species of inversecondemnation. The statute, as applied, has condemned theproperty 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 ofproperty of the highest order. See Loretto, 458 U.S. at427-28, 102 S.Ct. 3164. The State has permanent possession ofthe land, resulting in the ouster of the record owner. See id.It has acquired all of the sticks contained in the bundle ofpropertyrights because it owns the land. See id. at 435, 102 S.Ct.3164. The private individual has no property rights. See id.When the State acquires an easement on behalf of the public thatterminates a property owner's right to exclude others from hisor her land and allows any member of the public to enter andexit the property without restriction, the State has engaged ina permanent physical occupation. See Nollan, 483 U.S. at831-32, 107 S.Ct. 3141. Both are per se violations of thetakings clause. See id.; Loretto, 458 U.S. at 441, 102 S.Ct.3164. Therefore, plaintiff has alleged a sufficient takingsclaim in the complaint in this case.

This Court also notes that because the State acquired title toa portion of the reservoir bottom, the State has wiped out allof plaintiffs economically beneficial use of that property. SeeLucas, 505 U.S. at 1015, 112 S.Ct. 2886. Furthermore, the Courtnotes that as the State has placed the entire reservoir under apublic easement, the State may well have wiped out alleconomically beneficial use of the Reservoir. See id.; see alsoKaiser Aetna, 444 U.S. at 180, 100 S.Ct. 383 ("This is not acase in which the Government is exercising its regulatory powerin a manner that will cause an insubstantial devaluation ofpetitioner's private property; rather, the imposition of thenavigational servitude in this context will result in an actualphysical invasion of the privately owned marina."). The Statehas impressed a private individual into service to provide thepublic unrestricted use of private property. See, e.g., Lucas,505 U.S. at 1018, 112 S.Ct. 2886. Plaintiff has allegedsufficient facts to make out a takings claim.

C. Defendant's Arguments

Defendant offers a number of arguments as to why the State'sactions should not amount to a taking. The Court addresses eachargument in turn.

1. Adverse Possession and the Takings Clause

Defendant argues that no compensation is due when property isacquired by adverse possession. The crux of defendant's positionis that adverse possession and compensation are mutuallyexclusive concepts-compensation is never paid when a privateparty adversely possesses property. Defendant is making thetautological argument that adverse possession by the statecannot be a taking because the state has adversely possessedproperty. In this factual situation, this Court disagrees.Adverse possession is bar to trespass and ejection proceedings.See, e.g., R.I. Gen. Laws § 34-7-1. Here the government hastaken possession of the property, and the government's actionsare always subject to the Takings Clause of the Constitution.U.S. Const. art. VI, § 2 (the Supremacy Clause). Plaintiff isnot challenging the State's title to the property, ratherplaintiff is seeking the remedy of just compensation. It doesnot matter how the State takes property, only whether theConstitution mandates that the State pay compensation. FirstEnglish, 482 U.S. at 314-15, 107 S.Ct. 2378.

Defendant cites several state court cases for the propositionthat when a state acquires property by adverse possession or aneasement by prescription there is no taking. This Court presentsa brief summary of those state court decisions cited bydefendant and other decisions found by the Court. Theirpersuasive value to this Court, however, is limited for tworeasons. First, although state courts are equally competent todecide questions of federal law, a federal court is not bound bya state court's determination on an issue of federal law.Second, these state courts, for themost part, were not interpreting the United States Constitution.They were interpreting their own state constitutions. Thetakings clauses in those state constitutions do not mirror theexact text of the United States Constitution, indeed some aresignificantly more detailed.

In 1985, the Ohio Supreme Court was faced with a claim thatthe City of Columbus had encroached on a private landowner'sproperty. State, ex rel. A.A.A. Investments v. City ofColumbus, 17 Ohio St.3d 151, 478 N.E.2d 773 (1985) (percuriam). Specifically, two streets had been constructed in sucha manner that they occupied a small portion of property of theprivate landowner. Id. at 774. The Ohio Supreme Court onlyaddressed the takings issue under the Ohio Constitution thatcontains significantly different wording than the federalConstitution. Id. The Court concluded that adverse possessionis not a taking because the government has not taken property,rather the former owner has lost any claim of ownership over theproperty. Id. at 775.

In 1993, the Alaska Supreme Court determined that amunicipality's prescriptive easement did not entitle a propertyowner to just compensation under the Alaska and United StatesConstitutions. Weidner v. State, 860 P.2d 1205, 1212 (Alaska1993). The Court reasoned that after the prescriptive period hadended, any claim for just compensation was similarlyextinguished. Id. The statute of limitations for prescriptionbarred any takings claim, it ruled. Id.

The Maine Supreme Court recently followed the Alaska Court'sreasoning and held that there was no claim for just compensationin a case where a municipality had acquired a prescriptiveeasement. Stickney v. City of Saco, 770 A.2d 592, 603 (Me.2001). The Court agreed that under the state constitution theprivate landowner must bring an action for inverse condemnationprior to the expiration of the prescriptive period. Id. Thedecisions of other state courts reflect similar reasoning. SeeBoard of County Comm'rs v. Flickinger, 687 P.2d 975, 983-85(Colo. 1984) (en banc) (concluding that adverse possession of aroad, pursuant to state statute, 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 adversepossession and holding that "since the original owner has losthis claim of title, the state is no longer taking hisproperty."); Rogers v. Marlin, 754 So.2d 1267, 1273(Miss.Ct.App. 1999) ("[D]amages are never a part of adversepossession, which is what a prescriptive easement is. Unlikeeminent domain or a petition for a public way across theproperty of another without the benefit of the law ofdominant/servient tenements, the original owner of the propertyover which the prescriptive easement in question runs has longsince forfeited his right to demand payment for the easementover his property."); Dunnick v. Stockgrowers Bank ofMarmouth, 191 Neb. 370, 215 N.W.2d 93, 96 (1974) (concludingthat the Takings Clause does not bar the state from acquiringproperty by adverse possession, especially where it does so onbehalf of the public, and the owner must exercise his or herrights within the statutory possession period); City of Ashlandv. Hardesty, 23 Or. App. 523, 543 P.2d 41, 43 (1975) (holdingthat the Takings Clause in the Oregon Constitution does notprohibit adverse possession by the State); Petersen v. Port ofSeattle, 94 Wn.2d 479, 618 P.2d 67, 70 (1980) ("A 10-yearperiod of time, however, together with the requisite elements ofadverse possession would, in a case such as this, have vestedthe Port with a prescriptive avigation right in plaintiffs'property.That avigation easement, if prescriptively acquired, would notbe compensable.").

In many of the state decisions on this issue, the state courtsheld that the party was precluded from bringing the takingsclaim after the statutory period of adverse possession had beencompleted although the party could have brought a takings claimprior to the end of that statutory period. See, e.g., Weidner,860 P.2d at 1212. This is a misstatement of what is transpiringin adverse possession and prescription cases. The propertyinterest is not acquired by the government until the adversepossession and prescriptive period has been completed. Aplaintiff could not bring a takings claim until the possessionor prescription period had been completed because, until thattime, the government had not taken a property interest. In thecase of adverse possession, prior to the end of the statutoryperiod, the adverse possessor has no rights to the property.See, e.g., R.I. Gen. Laws § 34-7-1. A record owner could bringan action of trespass and ejectment. Under the trespass claim,the record owner could seek damages for the trespass. Under theejectment claim, the record owner could stop the adversepossession clock from running and enjoin the putative adversepossessor from continued possession of the property. As theputative adverse possessor had no property rights, however, therecord owner could not make out a takings claim.

Similarly in the case of a prescriptive easement, the recordowner could bring an action for trespass and ejection. There isno property interest, yet, that has been taken away from therecord owner. Therefore, there has been no taking prior to thecompletion of the statutory period. In this case, because thepublic was using the Reservoir, and not the State, plaintiff hadno claim against the State of any kind prior to the end of theprescriptive period. Plaintiff could only sue privateindividuals for trespass. As there was no state law thatmandated that plaintiff allow access to these individuals, priorto the end of the prescriptive period, there was no state actionand no takings claim could have been alleged.

If the takings clock were to stop at the moment the adversepossession clock has run, then the record owner as against thegovernment is in a curious Catch 22 situation. He or she had notakings claim prior to the completion of the adverse possessionprescription period, but would be similarly barred from having atakings claim after the period was completed. This Court doesnot sanction this bonanza for the government at the intersectionof property law and constitutional law.

Many of these state court cases (as defendant argues) rely onthe Supreme Court decision, Texaco v. Short, 454 U.S. 516, 102S.Ct. 781, 70 L.Ed.2d 738 (1982), for the proposition that theState can adversely possess property and that such possession isnot 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 withseveral constitutional challenges to the State of Indiana'sMineral Lapse Act. The Act provided "that a severed mineralinterest that is not used for a period of 20 years automaticallylapses and reverts to the current surface owner of the property,unless the mineral owner files a statement of claim in the localcounty recorder's office." 454 U.S. at 518, 102 S.Ct. 781. TheSupreme Court held that such a lapse was not subject to theTakings Clause. Id. at 530, 102 S.Ct. 781. The Court reasonedthat this property may be abandoned, that the owner has no rightto compensation, and that it is "the owner's failure to make anyuse 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 notcontrolling here. In Texaco v. Short, the statute allowed theextinguishment of a property right based on abandonment. 518-20, 102 S.Ct. 781. Land cannot be abandoned. Uponextinguishment, any mineral rights reverted back to the landfrom which they had been severed. Id. This reversion isbetween two private individuals, much like the typical situationof adverse possession, where the government would not berequired to provide compensation. See id. Here, the Stateassumes title, without compensation, allowing the public topermanently physically occupy the record owner's land toeffectuate a public easement on a man-made reservoir,eliminating the owner's right to exclude people from itsproperty. Texaco v. Short does not, as a matter of law, barplaintiffs takings claim.

The Takings Clause was meant to protect private individualsfrom excessive government intrusion on their property rights.See, e.g., Nollan, 483 U.S. at 835 n. 6, 107 S.Ct. 3141.Simply because an area of law may be ancient and well settleddoes not mean that it trumps the mandates of the United StatesConstitution. The Fifth Amendment contains a limitation ongovernmental power vis a vis private property. U.S. Const.Amend. V. This Court recalls the words of Justice Holmes: "Weare in danger of forgetting that a strong public desire toimprove the public condition is not enough to warrant achievingthe desire by a shorter cut than the constitutional way ofpaying for the change." Pennsylvania Coal Co., 260 U.S. at416, 43 S.Ct. 158; see also Nollan, 483 U.S. at 841-42, 107S.Ct. 3141 ("California is free to advance its `comprehensiveprogram,' if it wishes, by using its power of eminent domain forthis `public purpose,' see U.S. Const. Amdt. 5; but if it wantsan easement across the Nollan's property, it must pay for it.").

The government is not like another private individual, and theConstitution through the Takings Clause recognizes thatdistinction. The government has the power of eminent domain. Thegovernment has the power to regulate land use. Had thegovernment taken the property by eminent domain, it would havebeen a taking and just compensation would have been due to theowner. See Nollan, 483 U.S. at 831, 107 S.Ct. 3141. Had thegovernment created an easement over the property by legislativeaction, just compensation would have been due. See id. at834-37, 107 S.Ct. 3141 (reasoning that since a requirement of an"uncompensated conveyance of the easement outright would violatethe Fourteenth Amendment," the conveyance of an easement as acondition for a permit also requires compensation unless thereis an essential nexus between the legitimate state interest andthe condition); see also Opinion of the Justices (Public Use ofCoastal Beaches), 139 N.H.82, 649 A.2d 604, 611 (1994)("Because the bill provides no compensation for the landownerswhose property may be burdened by the general recreationaleasement established for public use, it violates the prohibitioncontained in our State and Federal Constitutions against thetaking of private property for public use without justcompensation.").

Had the state legislature regulated the use of the Reservoir,in such a way that required private property owners to allow thepublic to use their property unfettered, just compensation wouldhave been due. See Nollan, 483 U.S. at 837, 107 S.Ct. 3141.Had the government conditioned further benefits on the privateindividual allowing access to the property, a takingmight have occurred. See id.; Dolan, 512 U.S. at 386, 114S.Ct. 2309 (discussing exactions and the essential nexus test).The government cannot escape the Takings Clause by opting to sitby until title is transferred to it, and then claim that it isnot subject to the United States Constitution. The TakingsClause and adverse possession and prescription statutes cannotbe mutually exclusive. The State must abide by the terms of theUnited States 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 actingas a sovereign, defendant argues, then the State should betreated as any other private individual would be. To be actingas a sovereign, defendant claims, the State must exercise eitherits eminent domain power or its police power, neither of whichit utilized here. This argument has no merit. Unlike a privateindividual, the State must abide by the U.S. Constitution in itsactions. U.S. Const. amend. XIV. Additionally, the Stateacquired an easement on behalf of the public, something that asovereign, but no private individual, can do. Furthermore, ifthe State is not using its police power or eminent domain power,then the State action falls outside the public use requirementof the Takings Clause and the State could not act on behalf ofthe public. See Hawaii Hous. Auth., 467 U.S. at 240, 104 S.Ct.2321 (holding that public use is synonymous with the state'spolice power).

3. Background Principles of State Law

Defendant also argues that because adverse possession andprescription are background principles of state property law,there can be no taking. Insofar as the State has engaged in apermanent physical occupation of plaintiffs property, the Courtneed not delve into the state's background principles ofproperty law. See Lucas, 505 U.S. at 1027, 112 S.Ct. 2886.Instead, the Court must treat this as if the State took theproperty by eminent domain. A background principle analysis isonly required when the government regulates out all economicallybeneficial use of the property. Id. Even if the backgroundexceptions of property law applied here, no U.S. Supreme Courtprecedent establishes that the situation presented here wouldfall under that exception. A background principle in propertylaw exception occurs when a property right that was allegedlytaken is determined to have never been part of the property indispute. See, e.g., Stevens, 854 P.2d at 456. Simply because aparty had notice of a law is not sufficient to render it abackground principle. See Palazzolo, 533 U.S. at 629-30, 121S.Ct. 2448. The property interest here was owned by a privateentity and taken by the State, and therefore was always part ofthe property that plaintiff owned.

This Court concludes that plaintiff has alleged a takingsclaim that would normally be sufficient to survive a motion todismiss. But there are other principles applicable here.


Defendant makes various arguments that this claim istime-barred by the statute of limitations. In general,42 U.S.C. § 1983 governs claims for just compensation. City of Monterey,526 U.S. at 710, 119 S.Ct. 1624. Because § 1983 does not containits own statute of limitations, the Court must examine state lawfor a limitations period analogous to the constitutional wrongasserted. Takings claims sound in tort. Id. at 709, 119 S.Ct.1624.The statute of limitations for a tort action in Rhode Island isthree years. R.I. Gen. Laws § 9-1-14; see also Pearman v.Walker, 512 F. Supp. 228, 234 (R.I. 1981) (holding that anaction against a Rhode Island municipality under § 1983 isgoverned by the statute of limitations for personal injuries).

To determine if the claim is timebarred, this Court mustdetermine when the taking occurred and when any takings claimaccrued. Plaintiff argues that its takings claim did not beginto accrue until the Rhode Island Supreme Court rendered itsdecision in 2001. Defendant argues that the takings claimaccrued as soon as the State built the boat ramp in 1965.

As already discussed, this Court holds that the takingoccurred in 1975, at the moment the property was adverselypossessed and an easement by prescription was created.6Prior to 1975, plaintiff had only a claim for trespass againstthe state for the boat ramp. As to the use of the Reservoir bythe public, plaintiff had no claim against the state at all, butonly against private individuals for trespass.

Concluding that the taking occurred in 1975 does not resolvethe issue of whether this claim is time-barred. The Court mustdetermine when a takings claim accrued. As this Court hasalready discussed, a takings claim is not ripe for federal courtreview until there is a final decision by the state court on themerits. Williamson, 473 U.S. at 186-87, 105 S.Ct. 3108.

Determining when a claim is ripe for federal court review, inthis case however, does not answer whether this case istimebarred. In a typical takings case, if there is such a thing,the owner of the property has control of the litigation-that is,the owner would be the plaintiff in both the state court and anyfederal court proceedings. For example, the owner wouldchallenge a given state regulation in the state courts, and ifplaintiff lost and the regulation was upheld, could proceed tothe federal courts to seek compensation. That plaintiff couldappeal the state court decision to the United States SupremeCourt, if compensation had been denied, or if the claim becameripe for lower federal court review, plaintiff could commence anaction in a United States District Court. Williamson addressedthis litigation scenario. 473 U.S. at 175, 105 S.Ct. 3108.

In contrast, here, Pascoag was the defendant at the statelevel because the State sought a declaration of its rights.Pascoag did not have to wait for the State to initiate itsaction before it had a cognizable takings claim. Pascoag'spredecessor in title had a number of remedies in state court in1975, but took advantage of none of them. Pascoag's predecessorcould have sought to quiet title to establish that theprerequisite determination that the State had committed atakings had occurred. It could have sued for trespass andejectment, prompting the State to raise the defense of adversepossession and prescription. It could have argued that based onthe State's open and notorious occupancy, the State had engagedin a de facto condemnation of the property and soughtcompensation. In short, Pascoag's predecessor in title in 1975had a cause of action in state court for just compensation. Itdid not exercise that right. Instead,Pascoag and all its predecessors in title sat idly by and waitedfor twenty-six years after the cause of action for justcompensation accrued-until the State asserted its adversepossession and prescription claim. Pascoag's predecessor may nothave had a ripe cause of action in federal court in 1975 but itdid have a ripe cause of action in state court in 1975 todetermine its property rights and seek just compensation.Indeed, any compensation due to plaintiffs predecessor under theTakings Clause would have been the value of the propertyinterests taken in 1975. That cause of action was time-barredyears ago.

The State's three year statute of limitations for personalinjury begins to run on the accrual of a tort claim. R.I. Gen.Laws § 9-1-14. For these purposes, the claim accrued, or wasripe in state court, when plaintiffs predecessor was aware orshould have been aware of the injury. Since the Rhode IslandSupreme Court determined that the State's presence was open,notorious, and hostile, placing the then owner on notice of itspresence, the owner should have been aware that the taking hadoccurred. The statute of limitations began to accrue in 1975 andthe cause of action became time-barred in 1978.

This Court is well aware that a federal takings claim is ripeonly after a state court renders a final decision on the merits,and the statute of limitations does not begin to run in afederal takings claim until 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 be truly bizarre, however,to allow this claim to proceed. For state law purposes, thisclaim is twenty-three years too old, yet it is only ripe forfederal law purposes now. This Court cannot sanction such anabsurd result. Here, plaintiff and its predecessors in title,through repeated inaction, let their rights fritter away. Theyhad multiple chances to take control of the situation and failedto do so. This Court concludes that because the underlying stateclaim for just compensation is barred by the statute oflimitations, this federal claim is similarly barred by thestatute of limitations.

Even if this claim is not a cause of action at law that isbarred by the statute of limitations, the claim nonethelesswould be barred by the equitable doctrine of laches. To rewardplaintiff and its predecessors in title for sleeping on theirrights for twenty-six years offends the notion that a party mustcome to an equity court with clean hands. See Codex 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'of necessity gives wide range to a court's use of `discretion towithhold punishment of behavior which it considers not towarrant so severe a sanction.'") (quoting Norton Co. v.Carborundum Co., 530 F.2d 435, 442 (1st Cir. 1976)). The Courtcannot sanction proceeding with a claim that is so utterlystale.

The claim, at the very least, is barred by the doctrine oflaches. See Levald, Inc. v. City of Palm Desert, 998 F.2d 680,687 (9th Cir. 1993) (holding sua sponte dismissal is noterroneous when defense of statute of limitations has not beenwaived); Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991) (percuriam) (affirming sua sponte dismissal of complaint on statuteof 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 opposingparty." K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907,911 (1st Cir. 1989). Clearly, a twenty-six year delay inbringing suit is unreasonable. Clearly,defendant has 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 cannotmaintain a cause of action for just compensation for the takingthat occurred in 1975. This Court concludes that plaintiffsclaim is barred by the tort statute of limitations. Ifplaintiff's claim is deemed an equitable one it would be barredby the doctrine of laches. Therefore, Count I of the complaintmust be dismissed.


Counts II, III, and IV of plaintiffs complaint assert purelystate law claims. This Court declines to exercise supplementaljurisdiction over those claims. Supplemental jurisdiction allowsa federal court to hear both state and federal claims if theywould ordinarily be expected to be tried in one judicialproceeding. 28 U.S.C. § 1367(a). Supplemental jurisdiction,however, is discretionary. Penobscot Indian Nation v. Key Bankof Maine, 112 F.3d 538, 564 (1st Cir. 1997). As § 1367 states,the Court may decline to exercise jurisdiction if the Court hasdismissed all claims over which it has original jurisdiction.

Here, because the Court has dismissed Count I, the onlyfederal claim in the complaint, the Court declines to retainjurisdiction over the remaining state law claims. See id.Therefore, the state law claims are dismissed without prejudice.


Because Count I of plaintiffs complaint is time-barred, theCourt grants defendant's motion to dismiss. As Count I is theonly federal claim asserted by plaintiff, the remaining statelaw claims contained in Counts II, III, and IV are dismissedwithout prejudice for lack of federal question jurisdiction.

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

It is so ordered,

1. Although the complaint does not so state, the Court treatsthis action as though plaintiff brings it pursuant to42 U.S.C. § 1983.

2. The portion of the Reservoir bottom that the Stateadversely possessed is the portion that lies under the part ofthe boat ramp that extends into the Reservoir.

3. "Conclusive title by peaceful possession under claim oftitle. Where any person or persons, or others from whom he, sheor they derive their title, either by themselves, tenants, orlessees, shall have been for the space of ten (10) years in theuninterrupted, quiet, peaceful and actual seisin and possessionof any lands, tenements or hereditaments for and during thattime, claiming the same as his, her or their proper, sole andrightful estate in fee simple, the actual seisin and possessionshall be allowed to give and make a good and rightful title tothe person or persons, their heirs and assigns forever; and anyplaintiff suing for the recovery of any such lands may rely uponthe possession as a conclusive title thereto, and this chapterbeing pleaded in bar to any action that shall be brought for thelands, tenements or hereditaments and the actual seisin andpossession being duly proved, shall be allowed to be good, validand effectual in law for barring the action." R.I. Gen. Laws §34-7-1.

4. Following this section of the Restatement, the commentselaborate on the notion of a court expressly reserving the rightto maintain a second action. "A determination by the court thatits judgment is `without prejudice' (or words to that effect) toa second action on the omitted part of the claim, expressed inthe judgment itself, or in the findings of fact, conclusions oflaw, opinion, or similar record, unless reserved or set aside,should ordinarily be given effect in the second action."Restatement 2d on Judgments § 26(1)(b) cmt. b.

5. This Court notes that Rhode Island Supreme Court decisionson collateral estoppel or issue preclusion only discuss issuepreclusion as it relates to questions of fact, not questions oflaw. See, e.g., Jenkins, 673 A.2d at 1096; Audet 635 A.2d at1186. The Restatement 2d of Judgments, on the other hand,discusses issue preclusion in the context of both issues of factand law. Restatement 2d of Judgments § 27. The applicablestatute of limitations period is, of course, a question of law.

6. Even if the placement of the boat ramp constituted apermanent physical occupation of plaintiff's property andresulted in a taking at that time, that fact would not changethe determination of the date that the taking by adversepossession occurred. This Court is not faced with a claim basedon the presence of the boat ramp, but a claim based in theState's acquisition of the title to the land under the boat rampby adverse possession. These are two distinct events.

Back to top