City of Daphne v. Fannon, [Ms. 1180109, Dec. 6, 2019] __ So. 3d __ (Ala. 2019). The Court (Wise, J.; Bolin, Shaw, Mendheim and Stewart, JJ., concur; Bryan and Sellers, JJ., concur in the result; Parker, C.J., dissents; and Mitchell, J., recuses) reverses the Baldwin Circuit Court’s judgment in favor of David and Sarah Fannon on an inverse condemnation claim predicated on Daphne’s installation of an 18-inch drain pipe in the right-of-way adjacent to the Fannons’ property. The pipe had been installed nine years prior to a substantial rain event in 2014 which caused trees to fall on the Fannons’ home.
In reversing, the Court applied settled law that § 235 of the Alabama Constitution “was only intended to apply to such injuries as are capable of being ascertained at the time the works are being constructed or enlarged ....” Ms. *15, quoting Hamilton v. Alabama Power Co., 195 Ala. 438, 449, 70 So. 737, 741 (1915) (emphasis in Fannon). The Court held the Fannons failed to present any evidence establishing that “it was ascertainable, or foreseeable, during the construction of the drainage project nine years earlier, that erosion would occur and cause trees from the City’s right-of-way to fall onto and damage the Fannons’ house.” Ms. *21.
