RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0004p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

HARRY MCNAMARA, et al.,

Plaintiffs-Appellants,

v.

THE CITY OF RITTMAN,

Defendant-Appellee.

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No. 02-3965

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 00-03046—Kathleen McDonald O’Malley, District Judge.

Argued: December 4, 2003

Decided and Filed: January 8, 2007 

Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.

_________________

COUNSEL

ARGUED: Steve J. Edwards, Grove City, Ohio, for Appellants. Melvin L. Lute, Jr., BAKER,

DUBLIKAR, BECK, WILEY & MATHEWS, North Canton, Ohio, for Appellee. ON BRIEF:

Steve J. Edwards, Grove City, Ohio, for Appellants. Melvin L. Lute, Jr., Jack R. Baker, BAKER,

DUBLIKAR, BECK, WILEY & MATHEWS, North Canton, Ohio, for Appellee. 

_________________

OPINION _________________

BOYCE F. MARTIN, JR., Circuit Judge. This case involves a federal takings claim arising

from the City of Rittman’s operation of water wells that allegedly caused damage to plaintiffs. In

our initial review of the district court’s judgment, we requested that the Supreme Court of Ohio

answer an important question of first impression involving a property owner’s interest in the

groundwater beneath his property. The Supreme Court of Ohio has now answered that question.

For the reasons articulated below, we AFFIRM the decision of the district court.

1
No. 02-3965 McNamara, et al. v. City of Rittman Page 2

I

In 1973, the City of Rittman, Ohio, purchased a tract of land near the City of Sterling for the

purpose of drilling three wells there to serve the City of Rittman’s water needs. By 1980, the City

of Rittman had completed this project and began operating the wells, which now supply it with

between 500,000 and 750,000 gallons of water per day. 

A. State Court Proceedings

On January 4, 1994, the plaintiffs, all of whom are residents of the City of Sterling, filed a

complaint in state court seeking damages and injunctive relief against the City of Rittman. The

plaintiffs alleged that the City of Rittman’s use of the three new wells lowered their aquifer, causing

them to suffer water shortages and adversely affecting the quality of their water. Additionally, the

plaintiffs alleged that the City of Rittman’s actions forced them to drill new wells and purchase new

water pumps and water-softening equipment. The plaintiffs argued that the City of Rittman’s

activities constituted an “unreasonable dewatering” pursuant to the cause of action recognized by

the Supreme Court of Ohio in Cline v. American Aggregates Corporation, 474 N.E.2d 324 (Ohio

1984). The state trial court granted summary judgment to the City of Rittman based on sovereign

immunity and statute of limitations grounds. The court of appeals affirmed under similar reasoning,

noting that the Cline rules are only of immediate concern in dewatering actions brought against

private defendants. McNamara v. City of Rittman, 707 N.E.2d 967, 972 (Ohio Ct. App. 1998).

Where the defendant is a political subdivision of the state, however, the sovereign immunity inquiry

necessarily precedes any analysis under Cline. Id. Here, the state court of appeals affirmed that

sovereign immunity bars the plaintiffs’ prayers for relief, whether for damages or an injunction. Id.

The Supreme Court of Ohio dismissed the plaintiffs’ appeal as improvidently granted. McNamara

v. City of Rittman, 707 N.E.2d 943 (Ohio 1999).

B. Federal Court Proceedings

On December 7, 2000, the plaintiffs filed a federal complaint seeking relief under 42 U.S.C.

§ 1983, alleging that the City of Rittman’s actions constituted (1) a taking of their property without

just compensation in violation of the Fifth Amendment, and (2) a violation of their right to

procedural due process under the Fifth and Fourteenth Amendments. The district court concluded

that the plaintiffs’ takings claim was time-barred by the statute of limitations:

[N]either Williamson County [Regional Planning Commission v. Hamilton Bank, 473

U.S. 172 (1985)] nor any subsequent takings case law holds that a plaintiff must

pursue all conceivable means of remedy before a federal takings claim is ripe. . . .

Williamson County requires only that a plaintiff attempt to obtain just compensation

for a taking through procedures designated for that purpose. Williamson County, 473

U.S. at 194-95. Where that procedure is deemed inadequate, as it has been in Ohio,

see Kruse [v. Village of Chagrin Falls,] 74 F.3d at 698, then a takings claim is ripe

immediately. . . . Accordingly, the Court finds that Plaintiffs’ takings claim ripened

immediately when Plaintiffs knew or should have known of the underlying injury.

Plaintiffs must have acquired this knowledge no later than when Plaintiffs filed their

state court Complaint. See Conlin v. Blanchard, 890 F.2d 811, 815 (6th Cir. 1989).

Because the statute of limitations on § 1983 claims in Ohio is two years, and because

Plaintiffs did not file their takings claim in federal court until six years after they

filed their state Complaint, their takings claim is barred by the statute of limitations.

D. Ct. Op., Aug. 8, 2002, at 10-11 (emphasis in original). As for the plaintiffs’ due process claim,

the district court ruled that it was similarly time-barred, because “Plaintiffs’ procedural due process

claim, like their takings claim, ripened immediately when Plaintiffs knew or should have known of

the underlying injury.” Id. at 15.
No. 02-3965 McNamara, et al. v. City of Rittman Page 3

1

In 2004, the Ohio legislature added a time-limitation provision in actions “[f]or relief on the grounds of a

physical or regulatory taking of real property.” Ohio Rev. Code § 2305.09(E). This new limitations period is four years,

not two. Thus, any takings actions brought after 2004 should follow the four-year time bar, and this could be relevant

to any continuing violations actions plaintiffs may wish to bring in the future, as discussed in Part II-B of this opinion.

However, as to the original action brought by the plaintiffs and dismissed by the state and district courts on statute of

limitations grounds, the two-year limit properly applies.

This panel heard the appeal of the district court judgment on December 4, 2003. We

determined that the takings issue could not be resolved without first understanding whether an

“unreasonable dewatering” action under Cline implicates property rights. Thus, we filed an order

certifying the following question to the Supreme Court of Ohio: “Does an Ohio homeowner have

a property interest in so much of the groundwater located beneath the land owner’s property as is

necessary to the use and enjoyment of the owner’s home?” On December 21, 2005, the Supreme

Court of Ohio answered this question in the affirmative, holding that “Ohio landowners have a

property interest in the groundwater underlying their land,” and thus “governmental interference

with that right can constitute an unconstitutional taking.” McNamara v. City of Rittman, 838 N.E.2d

640, 646 (Ohio 2005). Having received this answer, we are confident that our Circuit’s takings

jurisprudence—in particular, that portion pertaining to takings under Ohio law—applies full force

to this appeal. 

II

This Court reviews de novo a district court’s holding that a legal claim is barred by the

applicable statute of limitations period. See Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir.

2003). “The statute of limitations for federal civil rights claims is the appropriate state statute of

limitations.” Lawson v. Shelby County, 211 F.3d 331, 336 (6th Cir. 2000) (citing Wilson v. Garcia, 471 U.S. 261). In this case, the parties agreed that the applicable statute of limitations is two years.

See Ohio Rev. Code § 2305.10.1

 Based on this statute of limitations, the district court dismissed the

action because the federal § 1983 action was filed six years after the filing of the claim in state court.

The district court found that plaintiffs knew of their injury, at the very latest, at the time of filing the

state court action in 1994, thus making the action four years late.

While we agree with the district court’s ultimate resolution of the matter, it is important to

clarify some of the nuances of this case not addressed in its opinion. In particular, we have

separated our analysis into two parts: (1) “past violations” — based on the premise that the

constitutional violation committed by the City, if any was committed at all, has already occurred;

and (2) “continuing violations” — based on the notion that a new constitutional violation, if any

exists, continues to be committed by the City, and inflicted on the plaintiffs, each day. See Kuhnle

Brothers, Inc. v. County of Geauga, 103 F.3d 516, 522 (6th Cir. 1997).

A. Past Violations

In its December 2000 complaint before the district court, the plaintiffs’ primary allegation

was that the City’s dewatering of their wells represented an unconstitutional taking of their property,

and that they should be entitled to damages—compensation in the form of $25,000 per individual

plaintiff—for this taking. A threshold question in any federal takings action, however, is whether

or not the case is ripe for review; for if it is not ripe, then we lack jurisdiction to hear the case.

Williamson, 473 U.S. at 194-95. In Williamson, the Supreme Court ruled that constitutional takings

claims are not ripe for federal court review until state compensation procedures, assuming they exist

and are adequate, have been exhausted:

The recognition that a property owner has not suffered a violation of the Just

Compensation Clause until the owner has unsuccessfully attempted to obtain just
No. 02-3965 McNamara, et al. v. City of Rittman Page 4

compensation through the procedures provided by the State for obtaining such

compensation is analogous to the Court’s holding in Parratt v. Taylor, 451 U.S. 527,

101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). There, the Court ruled that a person

deprived of property through a random and unauthorized act by a state employee

does not state a claim under the Due Process Clause merely by alleging the

deprivation of property. In such a situation, the Constitution does not require

predeprivation process because it would be impossible or impracticable to provide

a meaningful hearing before the deprivation. Instead, the Constitution is satisfied by

the provision of meaningful postdeprivation process. Thus, the State’s action is not

“complete” in the sense of causing a constitutional injury “unless or until the State

fails to provide an adequate postdeprivation remedy for the property loss.” Hudson

v. Palmer, 468 U.S. 517, 532, n. 12, 104 S.Ct. 3194, 3203, n. 12, 82 L.Ed.2d 393

(1984). Likewise, because the Constitution does not require pretaking compensation,

and is instead satisfied by a reasonable and adequate provision for obtaining

compensation after the taking, the State’s action here is not “complete” until the

State fails to provide adequate compensation for the taking.

Id. at 195. 

The critical inquiry after Williamson, therefore, is whether or not the state compensation

procedures are “reasonable, certain, and adequate.” Id. at 194. This inquiry is necessarily timespecific, because a state may have inadequate compensation procedures at one point in time, but

these may at a later date be rectified by statute (via the state legislature) or through evolution of the

common law (via state courts). See Arnett v. Myers, 281 F.3d 552, 563 (6th Cir. 2002) (stating that “Williamson specifically instructs that the relevant time frame for determining the adequacy of state

provisions for obtaining just compensation for an alleged taking is ‘at the time of the taking’”). This

is exactly what happened in the 1990s in Ohio. 

Ohio currently has a “reasonable, certain, and adequate procedure” available to takings

claimants in state courts:

Ohio does not have an inverse condemnation or other direct, statutory cause of action

for plaintiffs seeking just compensation for a taking. Rather, Ohio law provides a

statutory mechanism by which the government actor seeking to take property is

under a duty to bring an appropriation proceeding against the landowner. See Ohio

Rev. Code §§ 163.01-163.62; Shemo v. City of Mayfield Heights, 95 Ohio St. 3d 59,

765 N.E.2d 345, 350 (2002). A property owner who believes that his property has

been taken in the absence of such an appropriation proceeding may initiate a

mandamus action in Ohio court to force the government actor into the correct

appropriation proceeding. . . . Over the last ten years Ohio courts, including the Ohio

Supreme Court, have consistently recognized mandamus as the vehicle with which

to contest an involuntary taking, no matter whether that taking is a regulatory or a

physical one, and no matter whether the public actor is a state or local entity.

Coles v. Granville, 448 F.3d 853, 861, 865 (6th Cir. 2006). However, it was not until 1994 that the

availability of such a mandamus action was made explicit by the Supreme Court of Ohio. See Levin

v. City of Sheffield Lake, 637 N.E.2d 319, 323-34 (Ohio 1994); see also Coles, 448 F.3d at 864

(noting that in Ohio, the Levin decision was the “genesis of the modern recognition of the mandamus

action to force appropriation proceedings”). Thus, prior to the Levin decision, Ohio’s compensation

procedures in takings cases were decidedly not adequate. Williamson therefore had little impact on

takings claims brought in Ohio prior to Levin, as such claims were immediately ripe for federal

review.
No. 02-3965 McNamara, et al. v. City of Rittman Page 5

2

Although the district court came to the same ultimate result as we do now, it was incorrect for the court to have

conducted a separate ripeness analysis for the due process claim. See D. Ct. Op., Aug. 8, 2002, at 12-14. Rather,

because the procedural due process claim in this case is not independent of the underlying takings claim, ripeness

analysis for the takings claims necessarily subsumes ripeness analysis for the due process claim.

3

The issue of continuing violations was first properly raised in the parties’ letter briefs submitted to this Court

in March 2006.

 The plaintiffs in the instant case filed their original state-court complaint on January 4, 1994,

roughly six months prior to the issuance of Levin. The date on which the plaintiffs filed their statecourt complaint is, logically, the latest time at which they could have first known of their injury.

Because there was no “reasonable, certain, and adequate procedure” available to takings claimants

in Ohio state courts prior to the Levin decision, and because the alleged deprivation here occurred

prior to Levin, the plaintiffs’ claim was ripe for federal review already in 1994. And because it was

ripe for review in 1994, it was consequently time-barred when the plaintiffs filed in federal court

in 2000, well past the then two-year statute of limitations for § 1983 takings actions.

The plaintiffs’ procedural due process claims pertaining to past violations by the City are

similarly time-barred. “Procedural due process and equal protection claims that are ancillary to

taking claims are subject to the same Williamson ripeness requirements . . . .” Arnett, 281 F.3d at

562; see also Bigelow v. Michigan Dep’t of Natural Res., 970 F.2d 154, 159-60 (6th Cir. 1992).

This requires the plaintiffs to show that they had pursued an adequate state measure for obtaining

just compensation before their due process claim would be ripe. Because no adequate measure

existed at the time, however, the due process claim was ripe concurrent with the takings claim, and

as such it too is barred.2

B. Continuing Violations

The district court did not consider whether this case might implicate the “continuing

violation” doctrine for purposes of the statute of limitations. “Ordinarily, the limitations period

starts to run when the plaintiff knows or has reason to know of the injury which is the basis of his

action.” Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516, 520 (6th Cir. 1997) (internal

quotation marks and citations omitted). The limitations period will not bar all actions for all time,

however, as in certain cases where there is a “continuing violation . . . which inflict[s] continuing

and accumulating harm . . . .” Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502

n.15. (1968) (discussing the government’s continuing violation of a company’s rights under the

Sherman Act). In other words, “[a] law that works an ongoing violation of constitutional rights does

not become immunized from legal challenge for all time merely because no one challenges it within

two years of its enactment.” Kuhnle, 103 F.3d at 522.

The primary reason why the district court failed to consider the continuing violation issue

is because it was not properly raised before that court. Although we have discretion to rule on an

issue of law even in the absence of its proper development below, see Pinney Dock & Transp. Co.

v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988), we decline to exercise such discretion

here. If we were to do so, we would be ruling on a takings claim not brought before the state courts

in 1994, nor before the district court in 2000, but before this Court in 2006.3

 And such a claim,

brought for the first time in 2006, would not be ripe for our review. See Coles, 448 F.3d at 865.

Because “[t]oday, Ohio has ‘reasonable, certain, and adequate procedures’ for plaintiffs to pursue

compensation for an involuntary taking,” and because “there is no dispute that Plaintiffs have failed

to request mandamus from the state,” plaintiffs’ continuing-violation takings claim is not yet ripe

for review. Id. The proper course is for plaintiffs first to file a mandamus action in state court based

on their continuing-violations theory.
No. 02-3965 McNamara, et al. v. City of Rittman Page 6

It may seem a bit perverse that one takings claim (past violations) be barred by statute of

limitations because it was delinquently filed in federal court, and yet a similar claim (continuing

violations) be barred by ripeness because it was prematurely filed in federal court. But this is the

nature of federal-state interplay after Williamson, a dance made more awkward when actions, as

here, both pre- and post-date the Ohio Supreme Court’s decision in Levin. This Court’s decision in

Coles, however, has significantly clarified how such cases should be handled in the future. See also

Stewart E. Sterk, The Demise of Federal Takings Litigation, 48 WM.&MARY L.REV. 251, 292-300

(2006) (discussing “Takings Federalism” in the context of the Williamson ripeness requirement, and

noting that if federal courts “were free to hear takings claims in the first instance, their

determinations would not have the benefit of any comparable record with respect to state law”). 

For identical reasons, we decline to consider the plaintiffs’ continuing-violation due process

claim, which is ancillary to the continuing-violation takings claim. See Bigelow, 970 F.2d 154, 160

(“Until the state courts have ruled on the plaintiffs’ inverse condemnation claim, this court cannot

determine whether a taking has occurred, and thus cannot address the procedural due process claim

with a full understanding of the relevant facts.”).

III

Based on the discussion above, we AFFIRM the district court’s grant of summary judgment

in favor of the City of Rittman.