Does Increased Flooding of Downstream Land After State Installed New Spillway Constitute 'Taking' of Property?

Owners Seek Writ Compelling State to Compensate Them for Loss of Use

State of Ohio ex rel. Wayne T. Doner et al. v. Sean D. Logan, Director, Ohio Department of Natural Resources and Ohio Department of Natural Resources

Case no. 2009-1292

Original Action in Mandamus

ISSUES:

* Are the owners of properties downstream from a lake whose levels and discharges are managed by the Ohio Department of Natural Resources (ODNR) entitled to a writ of mandamus compelling the state to appropriate their land and compensate them for the loss of its use based on repetitive flooding that the owners allege has resulted from the 1997 replacement of a an old spillway by a wider spillway?

* Is the expansion of a spillway that allegedly results in periodic flooding of downstream properties a single event for which affected property owners must file suit within the four year statute of limitations for actions that allege a taking of private property for public use; or does each overflow from the spillway that causes downstream flooding create a new and separate cause of action that "tolls" (stops the running of) the statute of limitations?