In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3735

BRUCE PETERS,

Plaintiff-Appellant,

v.

VILLAGE OF CLIFTON, an

Illinois Municipal Corporation,

ALEXANDER COX & MCTAGGERT,

INCORPORATED and JOSEPH

MCTAGGERT,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 05 C 2242—Michael P. McCuskey, Chief Judge.

____________

ARGUED MAY 1, 2007—DECIDED AUGUST 22, 2007

____________

Before RIPPLE, MANION and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. Bruce Peters brought this action

under 42 U.S.C. § 1983 against the Village of Clifton

(“Village”), Alexander, Cox & McTaggert, Inc. (“ACM”)

and Joseph McTaggert. He alleged that the defendants

had trespassed on his property in order to expand the

Village’s sewage discharge system and, in so doing, had

committed an unconstitutional taking of his property in
2 No. 06-3735

violation of the Fifth and Fourteenth Amendments. On the

Village’s Rule 12(b)(1) motion, the district court dismissed

the action. Mr. Peters appealed. We agree that the district court properly dismissed the action, and, accordingly,

we affirm the judgment of the district court.

I

BACKGROUND

A. Facts

Mr. Peters owns a parcel of agricultural land just outside

the eastern edge of the village limits of Clifton, Illinois.

ACM owns agricultural property within the village limits

that directly abuts Mr. Peters’ land. Running eastward

along Mr. Peters’ property is a waterway that empties

into a drainage ditch. At some unknown time in the past,

prior to Mr. Peters’ ownership of the property, farm

drainage tile had been buried on Mr. Peters’ land. The tile

was parallel to and beneath the waterway. The Village

had an existing sewage line in the vicinity for some time.

The line ran under ACM’s property.

Mr. Peters claims that, in 2005, the private defendants, at

the instruction of the Village, trespassed onto his land, dug

up the old, non-functioning sewer tile and installed new,

larger tile. This newly-installed tile, Mr. Peters contends,

was then connected to the Village’s existing sewage tile “at

or about the property line” between his land and that

owned by ACM. R.1 at 4. The Village thus created, he

maintains, an “unregulated[,] unlicensed sanitary sewer

system discharging sewage through the farm tile within

[Mr. Peters’] property.” Id. at 3. Mr. Peters believes that

the Village made these improvements in an attempt to
No. 06-3735 3

1 Mr. Peters claims that, in the acts giving rise to his complaint,

both the Village and the private defendants were acting

under color of state law for purposes of liability under 42 U.S.C.

§ 1983.

make the adjacent land within the Village boundaries

suitable for development.

Mr. Peters claims that, to install the new tile, ACM, with

the consent of the Village, came onto his property and used

“various poisons on the nature preserve bordering the

above ground drainage ditch, underneath which is the

[Village’s] illegal sanitary sewage line.” He claims that this

action destroyed trees and destabilized the land. Id. at 4.

Mr. Peters claims that acres of his farmland were rendered unsuitable for agricultural uses because of soil

compaction and drainage of “untreated sewage and

waste materials.” Id. at 5.

B. District Court Proceedings

Mr. Peters filed a complaint in the United States District

Court for the Central District of Illinois. He asserted that

the defendants had committed an unauthorized taking

of his property in violation of the Takings Clause of the

Fifth Amendment of the Constitution as made applicable

to the states through the Fourteenth Amendment. See

Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226,

233, 236-37 (1897). Mr. Peters requested compensatory

damages for the taking and a permanent injunction forbidding the Village from discharging any materials

through the drainage tiles on his property.1

The Village moved to dismiss the action under Federal

Rule of Civil Procedure 12(b)(1) for lack of subject matter
4 No. 06-3735

jurisdiction, claiming that the action was not ripe. Specifically, the Village contended that, before Mr. Peters could

assert a takings claim in federal court, he was required

first to seek compensation through appropriate state

channels. This course was mandated, in the Village’s view,

by the decision of the Supreme Court in Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson

County, 473 U.S. 172 (1985).

In his memorandum opposing the motion to dismiss,

Mr. Peters maintained that the Village was not a home

rule municipality under Illinois law, and, therefore, had

no eminent domain power with respect to his land.

Mr. Peters further asserted that, because of the Village’s

status, he could not institute inverse condemnation proceedings against it and therefore was exempted from

Williamson County’s exhaustion requirement on futility

grounds.

The district court agreed with the Village that, under

Williamson County, Mr. Peters was obligated to show

either that he had exhausted state remedies or that those

remedies were unavailable to him. The district court

assumed for purposes of its analysis that the Village had

no eminent domain powers under Illinois law. The court

concluded, however, that, if the only remedy the state

provided for a taking was dependent upon a particular

jurisdiction’s home rule status, the lack of an available

remedy in a case such as this one would violate the Takings Clause of the Illinois Constitution. The district court

held that, absent explicit authority from the Illinois courts

that no state remedy was available for takings effected by

non-home rule jurisdictions, Mr. Peters was required to

seek compensation from the state, whether titled an inverse
No. 06-3735 5

2 See R.22 (Report of Recommendation of Magistrate Judge,

adopted by the district court at R.25).

3 On Mr. Peters’ first attempt to appeal this decision, this court

dismissed the appeal for lack of subject matter jurisdiction

because the judgment was not a final resolution of all claims

against all parties or an authorized interlocutory appeal. On

Mr. Peters’ motion, the district court amended its judgment to

dismiss all claims against all parties for lack of subject matter

jurisdiction, and Mr. Peters timely appealed.

condemnation proceeding or a suit in tort.2 Because

Mr. Peters had not availed himself of state procedures

for obtaining compensation, the court concluded that his

claim for a violation of the Takings Clause of the Fifth

Amendment was not ripe. Accordingly, the district court

dismissed the case for lack of subject matter jurisdiction.3

II

DISCUSSION

We review de novo a district court’s order dismissing a

case for lack of subject matter jurisdiction under Rule

12(b)(1). Small v. Chao, 398 F.3d 894, 897 (7th Cir. 2005). We

must accept all facts stated in the complaint as true and

must draw all reasonable inferences in the light most

favorable to the plaintiff. Tricontinental Indus., Ltd. v.

PricewaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.

2007).

A.

We pause at this point to set forth in some detail Mr.

Peters’ arguments. In support of his contention that
6 No. 06-3735

4 Mr. Peters also claims that a cause of action under 42 U.S.C.

§ 1983 does not require “exhaustion” of state remedies, see Patsy

v. Board of Regents, 457 U.S. 496, 516 (1982), and, at oral argument, he stated that there is no “exception” to this general

rule applicable to takings claims. In this respect, he misunderstands the use of the term “exhaustion” in the context of

Williamson County. As we stated in Daniels v. Area Plan Commission, 306 F.3d 445 (7th Cir. 2002),

the additional ripeness requirements of Williamson County

create a takings claim exception to Patsy’s general requirement that exhaustion is not required in § 1983 suits. Therefore litigants, like the [plaintiffs] in this case, who assert a

takings claim under 42 U.S.C. § 1983 may not rely solely

on Patsy, but must meet the Court imposed ripeness requirements of Williamson County prior to bringing a federal claim.

Id. at 453; see also Williamson County Reg. Planning Comm’n v.

Hamilton Bank of Johnson County, 473 U.S. 172, 194-95 & n.13

(1985) (noting that “exhaustion” is not required, but that “no

(continued...)

Williamson County does not require exhaustion in this case

and that therefore the matter is ripe for federal adjudication, Mr. Peters makes three principal, but interrelated,

arguments. First, Mr. Peters claims that Williamson County,

by its terms, is limited to suits for compensation, not suits

seeking to enjoin an “unlawful” taking, and, therefore, at

minimum, his claim for injunctive relief should proceed

immediately. Next, he claims that Williamson County does

not require him to pursue speculative and unproven

compensation procedures available in Illinois. Finally,

he contends that Williamson County expresses a prudential

ripeness requirement, not an Article III requirement,

and that compelling reasons support a different prudential rule in a case such as this one.4
No. 06-3735 7

4 (...continued)

constitutional violation occurs until just compensation has been

denied,” and, therefore, resort to state procedures is necessary).

Our cases have used “exhaustion” as a shorthand for the

requirement of resort to available state process identified in

Williamson County. See Greenfield Mills, Inc. v. Macklin, 361 F.3d

934, 957 (7th Cir. 2004); Daniels, 306 F.3d at 453; Forseth v. Vill. of

Sussex, 199 F.3d 363, 372 (7th Cir. 2000). We continue to do so

here, although we acknowledge the conceptual distinction

between our usual use of the term, see Patsy, 457 U.S. 496, and

the notion that an injured property owner’s takings claim is

not ripe until just compensation is denied, see Williamson County,

473 U.S. at 194-95.

More specifically, Mr. Peters contends that the Village’s

sanitary drainage system and the occupation and use of

his property for that system are illegal and unauthorized.

In his view, the Village has no ownership rights over the

property or over the ditch and tile on his property. Nor has

the Village, as a municipal entity without home rule

authority, any power of eminent domain over that property. Consequently, he argues, he is entitled to injunctive

relief to end the occupation of the property by the Village.

He relies on our decision in Daniels v. Area Plan Commission, 306 F.3d 445 (7th Cir. 2002).

Mr. Peters then submits that there is another, and related,

reason why he should not be required to observe the

exhaustion requirement of Williamson County. He notes

that Williamson County requires the exhaustion of state

remedies only when the state procedures are available

and adequate. Williamson County, 473 U.S. at 194, 197.

When no such procedure is available in state court, the

requirement is inapplicable, and a litigant may resort to a

takings claim in federal court without any antecedent
8 No. 06-3735

litigation in the state forum. He contends that, because of

its non-home rule status, the Village is exempt from an

inverse condemnation remedy and, therefore, the only

possible state remedies available to him are speculative

and theoretical. Williamson County, he reminds us, imposes on him no obligation to expend time and resources

exploring such gossamer paths. The state avenue of relief,

he further reminds us, must be “reasonable” and “certain”

at the time of the taking. Id. at 194 (quoting Regional Rail

Reorganizational Act Cases, 419 U.S. 102, 124-25 (1974)).

Mr. Peters elaborates further that there is no specific

statutory remedy for inverse condemnation in Illinois and

that, therefore, a landowner who has been denied the use

of his property by the government, without an eminent

domain action having been brought, must bring a mandamus action against that governmental entity to compel it

to institute eminent domain proceedings. For such a

mandamus action to succeed, however, the defendant

governmental entity must have the authority to carry out

the task that the plaintiff claims it has a clear legal duty

to perform. Here, he continues, the Village, by virtue of its

status as a non-home rule municipality, has no authority to

bring the eminent domain proceeding which Mr. Peters

believes should have been brought. Moreover, he continues, with one exception not relevant here, the Village’s

powers are limited to its own territory, and Mr. Peters’

land is not within the boundaries of the Village. Consequently, from Mr. Peters’ perspective, inverse condemnation procedures are unavailable and inadequate and he

may proceed in federal court to seek injunctive and

compensatory relief.
No. 06-3735 9

5 See also McKenzie v. City of Chicago, 118 F.3d 552, 556 (7th Cir.

1997) (“States condemn and pay for land all the time; the

Takings Clause of the fifth amendment supposes that money

damages are a constitutionally adequate substitute for real

property.”).

B.

The Takings Clause of the Fifth Amendment provides

that no “private property [shall] be taken for public use,

without just compensation.” U.S. Const. amend. V. “While

it confirms the State’s authority to confiscate private property,

the text of the Fifth Amendment imposes two conditions

on the exercise of such authority: the taking must be for a

‘public use’ and ‘just compensation’ must be paid to the

owner.” Brown v. Legal Found. of Washington, 538 U.S. 216,

231-32 (2003) (emphasis added).

“The Fifth Amendment does not proscribe the taking of

property; it proscribes taking without just compensation.”

Williamson County, 473 U.S. at 194. This principle makes

clear that, ordinarily, compensation, not an injunction, is

the appropriate remedy for a taking that satisfies the public

use requirement. Patel v. City of Chicago, 383 F.3d 569, 574

(7th Cir. 2004). “[T]he federal courts’ role is not to enjoin

localities from exercising their eminent domain powers,

but to ensure that property owners are justly compensated when localities exercise that power.” Id. at 574.5

Because “[n]o constitutional violation occurs until just

compensation has been denied,” Williamson County, 473

U.S. at 195 n.13, the Supreme Court has crafted a special

ripeness doctrine that applies to claims arising under the

Takings Clause. In Williamson County, the Supreme Court

considered a claim for a temporary regulatory taking,
10 No. 06-3735

occasioned by zoning regulations covering a particular

plot of land. The Court affirmed the dismissal of the action

by the landowner, holding it premature on two separate

bases. First, the Court ruled that the landowner had failed

to obtain a final decision from the state agency responsible

for the taking. Williamson County, 473 U.S. at 190-94

(explaining the final decision requirement). Second, the

Court reiterated the principle that the Constitution does

not prevent “taking[s],” but rather prohibits “taking[s]

without just compensation.” Id. at 194. A state need not

provide compensation prior to, or contemporaneous

with, the alleged taking, so long as there is a “reasonable,

certain and adequate provision” at the time of the taking

for an injured property owner to obtain just compensation from the state after the taking has been accomplished.

Id. at 194 (quoting Regional Rail Reorganization Act Cases, 419

U.S. at 124-25); see also id. at 196. Therefore, a plaintiff

property owner cannot claim a violation of the Just Compensation Clause until he has sought and been denied

compensation under available state court procedures. Id.

at 194 n.13, 195.

We have described the alternate bases for dismissing the

claim in Williamson County as a two-pronged ripeness

requirement for takings claims: (1) a final decision by

the government entity responsible for the taking and

(2) exhaustion of state procedures. Forseth v. Vill. of Sussex,

199 F.3d 363, 372 (7th Cir. 2000). Since Williamson County,

we also have recognized that allegations of physical takings

are subject to a streamlined ripeness analysis; the taking

itself constitutes a final action, and therefore a court need

only assess whether the plaintiff had availed himself of

appropriate state procedures. Greenfield Mills, Inc. v.

Macklin, 361 F.3d 934, 958 (7th Cir. 2004).
No. 06-3735 11

Williamson County created a “limited exception to its

exhaustion requirement based on the futility of seeking

state court relief.” Daniels, 306 F.3d at 456. If a property

owner demonstrates that state procedures for obtaining

just compensation are either unavailable or inadequate,

the claim is immediately ripe in federal court. See Williamson County, 473 U.S. at 196-97; Daniels, 306 F.3d at 456, 457-

58.

Despite the strong presumption that damages, not

injunctive relief, is the appropriate remedy in a Takings

Clause action, our case law does acknowledge that there

are limited circumstances in which injunctive relief is

available. For instance, it is well accepted that, when the

government has taken property for a private, rather than a

public, use, injunctive or declaratory relief may be appropriate. See Daniels, 306 F.3d at 457 n.11. Similarly, the

Supreme Court has held that many facial challenges to

legislative action authorizing a taking can be litigated

immediately in federal court. See San Remo Hotel, L.P. v.

City & County of San Francisco, 545 U.S. 323, 345 (2005); Yee

v. City of Escondido, 503 U.S. 519 (1992); see also Holliday

Amusement Co. of Charleston v. South Carolina, ___ F.3d ___,

2007 WL 1893384, at *2 (4th Cir. July 3, 2007) (“[T]he

state procedures requirement does not apply to facial

challenges to the validity of a state regulation.”).

With these principles in mind, we now turn to Mr. Peters’

specific contentions. Mr. Peters submits that this futility

exception applies in this case. In his view, exhaustion

would be futile here because an inverse condemnation

remedy is not available to him under Illinois law. He

relies on Illinois precedent that states that the usual remedy

in Illinois “inverse condemnation” situations is a mandamus action seeking to compel the responsible agency to
12 No. 06-3735

institute condemnation proceedings, see, e.g., Luperini v.

County of DuPage, 637 N.E.2d 1264, 1268 (Ill. App. Ct. 1994);

if the agency (or local government) has no authority to

institute eminent domain proceedings, Mr. Peters contends,

a mandamus action against it will fail, and the state

will provide no remedy.

Mr. Peters has not met his burden of demonstrating that

it would be futile to pursue available remedies in state

court. In Illinois, inverse condemnation is a judicially

recognized remedy arising out of the self-executing takings provision of the Illinois Constitution. Illinois Const.

art. 1, § 15; see also Warner/Elektra/Atlantic Corp. v. County

of DuPage, 991 F.2d 1280, 1284-85 (7th Cir. 1993) (explaining the availability of a judicially-created inverse condemnation action under the Illinois Constitution); Roe v. Cook

County, 193 N.E. 472, 474 (Ill. 1934) (interpreting the

Takings Clause of the Illinois Constitution as self-executing). Specifically, in Roe v. Cook County, 193 N.E. 472 (Ill.

1934), the Supreme Court of Illinois has stated that:

[w]hen the Constitution forbids the taking or damaging

of private property without just compensation and

points out no remedy, and no statute affords one, for

the invasion of the right of property thus secured, the

common law, which affords a remedy for every wrong,

will furnish the appropriate action for the redress of

such grievance.

 . . . .

It is entirely beside the point to say that even

though our bill of rights assures every person that his

property will not be taken for public use without just

compensation, yet where a county or other public

body violates this section by taking private property
No. 06-3735 13

6 Some of our sister circuits also have taken the view that a selfexecuting provision of a state’s constitution may constitute a

sufficiently reasonable, certain and adequate remedy to satisfy

the Fifth Amendment and, under Williamson County, is likewise sufficient to require the plaintiff to proceed in state court

before raising a federal takings claim. See Bateman v. City of

West Bountiful, 89 F.3d 704, 708-09 (10th Cir. 1996) (“A property

owner’s cause of action for inverse condemnation is provided

by Article I, section 22 of the Utah Constitution. This constitutional provision is self-executing . . . . [The plaintiff]’s failure to

avail himself of the procedure renders his claim premature.”);

Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 380 (2d Cir.

1995) (holding that when a state’s constitution provides a

“straightforward takings clause,” even when no case provides

compensation for the precise kind of taking alleged by the

plaintiff, the plaintiff “is still required to look to the state for

(continued...)

without condemnation proceedings, one may not

recover simply because the Legislature has failed to

provide any specific remedy. If this were true, the

constitutional guaranty would be nugatory and private

property could be taken with impunity and without

redress to the injured property owner. The constitutional provision itself, without remedial legislation, is

basic law, which not only confers a right but presupposes a remedy.

Id. at 473-74 (emphasis added). Under Roe’s interpretation

of the Illinois Constitution, the common law of Illinois

will afford Mr. Peters a remedy. Indeed, Mr. Peters does

not contend that Roe is no longer the law of Illinois; nor has

he identified a single case in which compensation was

refused on the basis that he asserts would doom his efforts to obtain relief in Illinois courts.6

 Rather, Mr. Peters
14 No. 06-3735

6 (...continued)

compensation before its takings claim will lie”). But see

Asociación de Subscripción Conjunta del Seguro de Responsibilidad

Obligatorio v. Flores Galarza, 484 F.3d 1 (1st Cir. 2007) (“In our

view, [reasonable, certain and adequate procedures] do not

include litigation of a state takings claim or any general remedial cause of action under state law. Rather, the Supreme Court

must have had in mind only those procedures specifically

designed by the state to avoid constitutional injury in the first

instance by providing a means for a plaintiff to obtain compensation for the government’s taking of property.”).

7 As we noted in Rockstead v. City of Crystal Lake, 486 F.3d 963

(7th Cir. 2007), when “the obstacle to [just compensation] is a

state common law doctrine,” a plaintiff may face greater

difficulty in demonstrating that state procedures will fail him.

Id. at 966. “Judges do not make statutes or constitutions and

(continued...)

claims that, despite the clear language in Roe, Illinois will

not provide a remedy. He bases this assertion on his

reading of Illinois precedent establishing the manner in

which claims under § 15 ordinarily proceed, that is, by

way of a mandamus action to force the municipality to

institute eminent domain proceedings, see, e.g., Luperini,

637 N.E.2d at 1268. Whatever subsequent Illinois cases

say about the usual method a landowner might use to

obtain compensation, Roe indicates that the courts of the

state will find a remedy if a taking has occurred. Based on

this clear statement by the Supreme Court of Illinois that

a remedy is available to injured landowners, we conclude that Mr. Peters “has not shown that the inverse

condemnation procedure is unavailable or inadequate, and

until [he] has utilized that procedure, [his] taking claim

is premature.” Williamson County, 473 U.S. at 197.7
No. 06-3735 15

7 (...continued)

cannot change them, but they do make, and they can—and

do—change, common law doctrines.” Id.

C.

Finally, Mr. Peters contends that Williamson County’s

requirements are prudential and insufficient to support the

district court’s decision that it lacked subject matter

jurisdiction in this case. He relies largely on Chief Justice

Rehnquist’s concurring opinion in San Remo Hotel, L.P. v.

City & County of San Francisco, 545 U.S. 323, 348-52 (2005),

which, Mr. Peters contends, “exposed” Williamson County’s

“fundamental and untenable doctrinal flaws.” Appellant’s

Br. at 10 n.2.

Williamson County’s ripeness requirements are prudential

in nature. See Suitum v. Tahoe Reg’l Planning Agency, 520

U.S. 725, 733-34 & n.7 (1997); Forseth, 199 F.3d at 368 n.7.

The prudential character of the Williamson County requirements do not, however, give the lower federal courts

license to disregard them. The Supreme Court has determined, as a matter of law, when federal takings claims

are ripe and has set forth a rule in Williamson County that

this court is bound to follow. In the absence of compliance

with Williamson County, the district court correctly dismissed this action.

Conclusion

We affirm the judgment of the district court.

AFFIRMED
16 No. 06-3735

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-22-07