Taking Nevada

The Nevada Supreme Court has ruled by order of a panel of three justices that the question of whether a taking has occurred is a question of law for a judge to decide, and not a question for a jury.

In Fritz v. Washoe County, Order No. 19-23685 (2019), the Nevada Supreme Court affirmed the trial court’s determination that no taking had occurred due to intermittent flooding of a certain parcel of land. The landowners had claimed that uphill development approvals and the acceptance of dedications of land in furtherance of those developments was the proximate cause of flooding. The Nevada Supreme Court affirmed the trial court’s determination that the flooding was not frequent enough (thrice over a score) and had not caused a substantial injury to support a claim for a taking.

But, more importantly (to me anyway), the Nevada Supreme Court stated that the decision was properly made by the trial judge, because the question was a legal question for the bench, not a factual question for the jury. While the landowners had argued that the Nevada Constitution should secure a jury trial on inverse condemnation liability, the Court disagreed. I think the Court got it right based on the overwhelming textual, contextual, and historical record both for Nevada, and for the American and English Common Law.

For those keeping track at home, I find an interesting parallel between Fritz and Buzz Stew. Both cases were initially decided by published opinion in favor of the landowner on the legal question of whether the government MIGHT have sufficiently injured the landowners rights to warrant a decision on the merits. But in both cases, the proceedings after remand resulted in the trial court concluding that the government had not violated the property rights of the landowner, and the Nevada Supreme Court affirmed that decision on the merits. Buzz Stew, 124 Nev. 224 (2008) and 341 P.3d 646 (2015); Fritz, 376 P.3d 794 (2016) and Order 19-23685 (2019)