Thursday, May 18, 2006

S.C. Supreme Court holds that capping of landfill is an aggressive act supporting action for inverse condemnation

In WRB, LP v. County of Lexington, the County capped a landfill in an effort to deal with a methane gas problem. Landowner brought an inverse condemnation action alleging a migration of methane to Landowner's property resulted. This capping diverted the vertical migration of methane and caused it to vent laterally onto Landowner's property. The trial judge found that although there was a factual dispute regarding whether capping caused the migration of methane to Landowner's property, the capping in any event was not "an affirmative, positive, aggressive act" and therefore did not support an action for inverse condemnation.

The Supreme Court reversed. The court held that capping was an affirmative, aggressive, positive act and that summary judgment should not have been granted.

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