City of Tupelo, Mississippi v. John Patterson (Pat) O'Callaghan
2017 Miss. LEXIS 19
| Miss. | 2017Background
- In 1992 the City of Tupelo replaced a small drainage pipe near the O’Callaghans’ house with a large pipe and open ditch; the ditch later eroded and damaged an enclosed carport-apartment, producing structural failure and black mold.
- The O’Callaghans repeatedly contacted city officials about erosion from the ditch between the late 1990s and 2004; the city declined to remediate because the ditch lay on private property.
- They sued Tupelo in 2008 under the Mississippi Constitution’s Takings Clause but voluntarily dismissed after their engineer changed opinion.
- In 2012 a different engineer concluded the ditch caused continuing damage; the O’Callaghans refiled in 2013 seeking property damages under Article 3, §17 and personal-injury damages for mold-related respiratory harms.
- The trial court denied Tupelo’s summary-judgment motion; the Mississippi Supreme Court granted interlocutory review.
- The Court held (1) the general three-year statute of limitations (Miss. Code §15-1-49) applies to takings claims and accrues on discovery of the injury, (2) each rainfall is not a separate taking, and (3) personal-injury damages are not recoverable under Article 3, §17 — reversing and rendering judgment for the City.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Article 3, §17’s phrase “without limitation or qualification” bars application of a statute of limitations | Herman’s language means Takings Clause claims are immune from any statutory limitations | Takings claims are subject to statutes of limitation (e.g., §15-1-49); adverse possession can bar claims | The phrase concerns the scope of recoverable property damage, not time limits; §15-1-49 applies to takings claims |
| If §15-1-49 applies, when does accrual occur / is claim time-barred | Accrual did not occur until engineer identified city as cause; therefore claim timely | Accrual occurred when plaintiffs knew of injury (not when they knew its cause); earlier notice bars suit | Accrual occurs when plaintiff discovers the injury (not discovery of cause); O’Callaghans’ claims accrued by 2008 and were time-barred by 2011 |
| Whether each heavy rain is a separate taking (or whether the taking is continuing) | Repeated erosion with each heavy rain constitutes successive takings so limitations renew | Physical takings are not continuous; the taking accrues when injury is first discoverable | Takings for these purposes are not continuous and each rain is not a new taking; damages recoverable are those sustained from the time of accrual onward |
| Whether personal-injury damages (mold-related respiratory harm) are recoverable under Article 3, §17 | Personal injuries caused by government-induced property conditions are compensable under the Takings Clause | Article 3, §17 compensates only for appropriation or damage to real property; personal injuries are common-law torts | Personal-injury damages are not recoverable under Article 3, §17 and must be pursued, if at all, in separate common-law claims |
Key Cases Cited
- City of Vicksburg v. Herman, 72 Miss. 211 (1894) (interpreting Article 3, §17 expansion to include "damages" to property)
- McLemore v. Mississippi Transp. Comm’n, 992 So.2d 1107 (Miss. 2008) (Takings claims are self-executing; court rejected application of MTCA immunity)
- Angle v. Koppers, 42 So.3d 1 (Miss. 2010) (statute accrues on discovery of the injury itself, not discovery of the cause)
- John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008) (statute-of-limitations rules for takings claims may be jurisdictional)
- Sturges v. City of Meridian, 95 Miss. 35 (1909) (adverse possession/prescription can limit rights and a governmental increase beyond prescriptive rights may support a claim)