2016 IL 119861

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 119861) 

JENICE HAMPTON et al., Appellees, v. METROPOLITAN WATER

RECLAMATION DISTRICT OF GREATER CHICAGO, Appellant.

Opinion filed July 8, 2016.

CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion.

Justices Thomas, Karmeier, and Theis concurred in the judgment and opinion. 

Justice Burke specially concurred, with opinion, joined by Justices Freeman 

and Kilbride. 

OPINION

¶ 1 Plaintiffs, a class of property owners, filed complaints against the Metropolitan 

Water Reclamation District of Greater Chicago (the District), based on allegations 

of flooding on their properties following a rainstorm. The circuit court consolidated 

the complaints. Plaintiffs assert that the District caused the flooding by diverting 
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stormwater into nearby creeks. Plaintiffs claim that the flooding constitutes a 

taking for which they are entitled to just compensation under the Illinois takings 

clause. The District moved to dismiss the consolidated complaint based on this 

court’s decision in People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948). The 

District contends that, based on Pratt, a temporary flooding can never constitute a 

taking under the Illinois Constitution. More recently, however, the United States

Supreme Court concluded that temporary flooding can constitute a taking under the 

federal constitution. Arkansas Game & Fish Comm’n v. United States, 568 U.S. 

___, 133 S. Ct. 511 (2012). The Cook County circuit court denied the District’s 

motion to dismiss the Illinois takings clause claim and certified the following 

question pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010): “Does 

Arkansas Game and Fish Commission v. U.S.[,] 133 S. Ct. 511 (2012), overrule the 

Illinois Supreme Court’s holding in People ex rel. Pratt v. Rosenfield, 399 Ill. 247 

(1948)[,] that temporary flooding is not a taking?” 

¶ 2 The appellate court recognized that the Illinois takings clause provides broader 

protection than the federal takings clause but did not address whether a “taking” is 

defined in the same way under each clause. The appellate court interpreted Pratt as 

establishing a “blanket temporary-flooding exception” and held that Arkansas 

Game & Fish Comm’n overruled Pratt to the extent that Pratt held a temporary 

flooding could never be a compensable taking. We allowed defendant’s petition for 

leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. Jan. 1, 2015). 

¶ 3 BACKGROUND

¶ 4 Plaintiffs are property owners and residents of the villages of Bellwood, 

Hillside, and Westchester. These villages are located within Cook County and 

within the territory for which the District is responsible for stormwater 

management. On or about July 23-24, 2010, Cook County experienced a heavy 

rainfall. Plaintiffs allege that, in response to the rain, defendant: (1) closed the 

Lockport Lock and Dam floodgate to the Des Plaines River, which affected the 

water levels on Lower Salt Creek, Addison Creek, and the Lower Des Plaines 

River; (2) closed the locks to Lake Michigan at the Chicago Water Control Works, 

which affected the water level of the Lower Des Plaines River; (3) discharged 

excess stormwater runoff from the O’Hare South Detention Basin, the O’Hare 
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North Retention Pond, and Touhy Avenue Flood Control Reservoir Cells 1 and 2 

into the surrounding waterways, which caused an increase in flow and volume in 

waterways upstream and downstream of Hillside, Bellwood, and Westchester; (4) 

pumped stormwater into Addison Creek, which caused an increase in flow and 

volume in Addison Creak; and (5) pumped stormwater from the Mayfair Reservoir 

into Lower Salt Creek, which caused an increase in flow and volume in Lower Salt 

Creek. Plaintiffs also allege that on or before July 23 and 24, 2010, the District was 

engaged in maintenance activity within the Lower Salt Creek and Addison Creek 

channels. Plaintiffs claim that, as the result of these activities, Addison Creek and 

Lower Salt Creek overtopped their banks and caused flooding on properties owned 

and occupied by plaintiffs. Plaintiffs also allege these actions caused sewers to back 

up, which caused additional flooding. 

¶ 5 In asserting their claim of a violation of the Takings Clause, plaintiffs allege 

that their homes, personal belongings, basements, and other private property were 

damaged or destroyed as a result of the flooding. Plaintiffs also allege that members 

of the class were deprived of the use of their homes because of the backup from the 

public sewers and overtopping of the creeks. Plaintiffs’ complaint does not further 

explain how the flooding deprived members of the use of their homes, the extent of 

the damage, how long the properties remained flooded, or whether the damage 

caused by the flooding has been or could be repaired. 

¶ 6 The District moved to dismiss the complaint under sections 2-615 and 2-619 of 

the Code of Civil Procedure. 735 ILCS 5/2-615, 2-619.1 (West 2014). The circuit 

court granted the motion as to count I and thereby dismissed plaintiffs’ claim based 

on a violation of the Metropolitan Water Reclamation District Act. That claim is 

not at issue in this appeal. Next, the circuit court denied the District’s motion to 

dismiss plaintiffs’ takings clause claim, based on its finding that plaintiffs 

sufficiently alleged a physical invasion of their properties as a result of the 

District’s actions. The circuit court then granted the District’s motion to certify the 

following question for interlocutory appeal under Illinois Supreme Court Rule 308: 

“Does Arkansas Game and Fish Commission v. U.S.[,] 133 S. Ct. 511 (2012), 

overrule the Illinois Supreme Court’s holding in People ex rel. Pratt v. Rosenfield, 

399 Ill. 247 (1948)[,] that temporary flooding is not a taking?” See Ill. S. Ct. R. 308 

(eff. Feb. 26, 2010). 
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¶ 7 The appellate court declined to consider the facts of the case and addressed only 

the certified question. The appellate court first compared the takings clause of the 

Illinois Constitution with the takings clause in the fifth amendment to the U.S. 

Constitution. The court found that the “Illinois takings clause provides protection 

greater than that of its federal counterpart.” 2015 IL App (1st) 132317, ¶ 14 (citing

International College of Surgeons v. City of Chicago, 153 F.3d 356, 363 (7th Cir. 

1998)). The court concluded that, “to the extent that Pratt holds that temporary 

flooding of property can never be a compensable taking under the Illinois 

Constitution, it is effectively overruled by Arkansas Game & Fish Comm’n.” Id.

¶ 26. The appellate court remanded the case to the circuit court to address the merits 

of plaintiffs’ complaint in light of this conclusion. The District filed a petition for 

leave to appeal to this court, which we allowed. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015). 

This court also granted leave to the Illinois Association of Wastewater Agencies, 

the Illinois Municipal League, and the Village of Glenview to file amicus curiae 

briefs.

¶ 8 ANALYSIS

¶ 9 This court is now asked to review the appellate court’s answer to the certified 

question—whether Arkansas Game & Fish Comm’n overruled the Illinois Supreme 

Court’s holding in Pratt that temporary flooding is not a taking. Our review of the 

appellate court’s ruling on certified questions is governed by Rule 308. DeBouse v. 

Bayer, 235 Ill. 2d 544, 550 (2009). We review certified questions, which are by 

definition questions of law, de novo. Moore v. Chicago Park District, 2012 IL 

112788, ¶ 9. Plaintiffs’ claim is based solely on the Illinois takings clause. This 

court is the final arbiter of state law. Hope Clinic for Women, Ltd. v. Flores, 2013 

IL 112673, ¶ 79. The U.S. Supreme Court has no authority to overrule a state 

court’s declaration of the meaning of state law. Id.; see Bute v. Illinois, 333 U.S. 

640, 668 (1948) (“The Supreme court of Illinois has affirmed both sentences ***. It 

has thus conclusively established their compliance with Illinois law.”). Therefore, 

the Supreme Court’s decision in Arkansas Game & Fish Comm’n could not 

overrule a decision of this court regarding the Illinois takings clause. 

¶ 10 However, Illinois employs a limited lockstep approach when interpreting 

cognate provisions of the Illinois and U.S. Constitutions. Under this approach, 
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there are three possible scenarios. People v. Caballes, 221 Ill. 2d 282, 289 (2006). 

If a provision is unique to the state constitution, it must be interpreted without 

reference to a federal counterpart. Id. If a provision in the state constitution is 

similar to a provision in the federal constitution, but differs from it in some 

significant respect, the language of the provision must be given effect. Id. at 

289-90. Lastly, if a provision of the state constitution is identical to or synonymous 

with the federal constitutional provision, federal authority on the provision 

prevails, unless “the language of our constitution, the constitutional convention 

debates and committee reports, or state custom and practice *** indicate that the 

provisions of our constitution are intended to be construed differently.” Hope 

Clinic for Women, Ltd., 2013 IL 112673, ¶ 83. Under this approach, this court will 

follow the lead of the United States Supreme Court when it publishes decisions 

regarding a constitutional provision if it is determined that the relevant provision is 

to be interpreted as synonymous with its Illinois counterpart. The circuit court 

should have avoided the use of the term “overruled” and drafted its certified 

question in a way that would better reflect the role of federal precedent in Illinois 

law. Nevertheless, we will consider whether the decision in Arkansas Game & Fish

Comm’n ought to be incorporated into this court’s Illinois takings clause 

jurisprudence and, if so, whether that decision conflicts with this court’s decision in 

Pratt. 

¶ 11 The first step to resolving this question is to determine whether the takings 

clauses of the Illinois and U.S. Constitutions are synonymous. The Illinois takings 

clause states: “Private property shall not be taken or damaged for public use 

without just compensation as provided by law. Such compensation shall be 

determined by a jury as provided by law.” Ill. Const. 1970, art. I, § 15. The federal 

takings clause, in relevant part, provides: “nor shall private property be taken for 

public use, without just compensation.” U.S. Const., amend. V. Clearly, the takings 

clause is not unique to the Illinois Constitution and therefore does not fall within 

the first category described above. 

¶ 12 The District contends that, because the language of the Illinois clause differs 

from the language of the federal clause, the two clauses should not be interpreted as 

meaning the same thing. The relevant difference in the two clauses is the explicit 

inclusion in the Illinois clause of protection for property that is “damaged” and the 

requirement that compensation be determined “by a jury as provided by law.” 
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Plaintiffs alleged that their properties were both taken and damaged. However, the 

certified question addresses only property that is taken, and thus we examine first 

what constitutes a taking under Illinois law in order to determine whether Arkansas 

Game & Fish Comm’n is relevant to a takings claim analysis under Illinois law. 

¶ 13 We find no convincing evidence that the delegates to the Illinois constitutional 

conventions intended for a “taking” to be defined differently from its federal 

counterpart. See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448,

458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private 

property for public use without just compensation does not preclude the State from 

taking private property, but only requires the State pay compensation.’ *** We 

interpret our present State constitutional protection against taking property without 

just compensation in the same way.” (quoting Beverly Bank v. Illinois Department 

of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 

549, 554 (1949) (noting that the same test is applied by the Illinois Supreme Court 

and the federal courts to determine whether real estate has been taken for public use 

within the meaning of the takings clauses); see also City of Chicago v. ProLogis, 

236 Ill. 2d 69, 77, 80-81 (2010) (analyzing takings claims under the Illinois and 

United States Constitutions in the same way and declining to consider whether the 

Illinois clause provides greater protection, because the party making the argument 

failed to raise it in petition for leave to appeal and thus the argument was forfeited); 

Cwik v. Giannoulias, 237 Ill. 2d 409, 417-19 (2010) (analyzing takings claims 

based on the state and federal constitutions in the same manner); Canel v. Topinka, 

212 Ill. 2d 311, 331-32 (2004) (same); Village of Lake Villa v. Stokovich, 211 Ill. 2d 

106, 130 (2004) (same); Southwestern Illinois Development Authority v. National 

City Environmental, L.L.C., 199 Ill. 2d 225, 235-42 (2002) (same). 

¶ 14 A review of the transcripts from the Constitutional Convention of 1870, when 

the “damage” prong of the Illinois takings clause was added, indicates no intent on 

the part of the convention delegates to deviate from the federal definition of a 

taking. The amendment was made to provide broader protection and establish a 

constitutional remedy for property owners whose real estate is damaged but not 

taken as a result of public improvements. II Debates and Proceedings of the 

Constitutional Convention of the State of Illinois 1578 (Apr. 29-30, 1870) (“This is 

an innovation—a new principle. It is for the purpose *** of protecting persons 

whose property is not immediately taken by the exercise of the right of eminent
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domain, but by reason of the adjoining property being taken or a street being 

leveled or graded up so that their property is injured.”). Similarly, the discussion of 

the takings clause at the 1970 convention does not reveal any intention to interpret a 

“taking” as something other than what is recognized as a taking under the federal 

constitution. 3 Record of Proceedings, Sixth Illinois Constitutional Convention 

1553 (“Presently in our constitution, we have a provision that you can’t take a 

man’s property without paying him for it. We also have a provision—which is 

different from most states and different from federal rule—that you can’t damage a 

man’s property without paying him for it.”). 

¶ 15 Furthermore, there is no evidence that state custom and practice dictate a 

different analysis under state and federal law. The District and its amici assert that 

there is a state practice of applying a blanket rule that temporary flooding cannot be 

a taking. This court has never applied such a blanket rule, and only in Luperini v. 

County of Du Page and in this case has the appellate court stated such a categorical 

ban. Compare Luperini v. County of Du Page, 265 Ill. App. 3d 84, 89 (2d Dist. 

1994) (summarizing Pratt as holding that, “[w]here the public improvement causes 

only temporary accumulations of water on the subject property, a taking has not 

occurred”), with Pineschi v. Rock River Water Reclamation District, 346 Ill. App. 

3d 719, 726-27 (2d Dist. 2004) (holding that the plaintiff had a valid taking claim 

where he was forced to evacuate his house for several days due to a 

government-caused sewer backup, despite the fact that the taking was temporary); 

see In re Petition of Commissioners of Sny Island Levee Drainage District, 130 Ill. 

App. 3d 959, 967 (4th Dist. 1985) (noting that, in Pratt, “[t]he supreme court 

affirmed, noting that none of plaintiffs’ property was taken by the improvement and 

that the damages complained of were not of a sufficiently lasting nature to amount 

to a taking”); County of Winnebago v. Kennedy, 60 Ill. App. 2d 408, 412 (2d Dist. 

1965) (“The diversion of surface water onto property by means of altering the 

natural drainage can constitute a taking. [Citations.] Whether the diversion of water 

onto property constitutes a ‘taking’ of the property, or merely ‘damage’ to it, 

depends, obviously, upon the facts of the case.”); see also Rockstead v. City of 

Crystal Lake, 486 F.3d 963, 967 (7th Cir. 2007) (“The Supreme Court of Illinois 

has not weighed in on the issue since the Pratt case in 1948, more than half a 

century ago. It is premature to conclude that if faced with a case such as this it 

would deny relief on the basis of a mechanical application of the ‘temporary 

accumulations’ doctrine.”). 
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¶ 16 Therefore, United States Supreme Court decisions regarding what constitutes a 

taking are relevant for purposes of determining whether a plaintiff has sufficiently 

alleged a taking under the Illinois Constitution. See International College of 

Surgeons, 153 F.3d at 363 (“Although it is true that the Illinois Takings Clause 

provides protection greater than that provided by its federal counterpart *** [t]he 

greater protection provided by the Illinois Takings Clause stems from the fact that 

the clause not only guards against a governmental taking of private property but 

also guards against governmental ‘damage’ to private property. *** If the plaintiff 

cannot make this showing, then his claim is analyzed under the same standard 

employed under the federal constitution ***.”). 

¶ 17 The United States Supreme Court’s decision in Arkansas Game & Fish 

Comm’n and the Illinois Supreme Court’s decision in Pratt both address whether 

temporary flooding constitutes a taking under the United States and Illinois 

Constitutions, respectively. Plaintiffs assert that the rule in Arkansas Game & Fish 

Comm’n is directly contrary to the rule in Pratt. The District contends that these 

cases are distinguishable. We conclude these cases are consistent with one another.

¶ 18 In Pratt, the plaintiffs alleged that their properties were damaged when an old 

viaduct was removed and replaced. 399 Ill. at 248. In replacing the viaduct, the 

grade of the street bordering the plaintiffs’ properties was changed. Id. at 249. The 

plaintiffs alleged that, as a result, surface water ran into their buildings, requiring

them to change the floor levels in order to continue using the buildings. Id. The 

plaintiffs filed a petition for a writ of mandamus requiring the city and related 

agencies and officials to file a petition to determine damages. Id. The defendants 

refused to pay the damages or institute eminent domain proceedings. Id. The 

supreme court noted that “[i]t [was] not alleged that the[ ] waters accumulate and 

remain on the premises and thereby prevent the use thereof,” and that the 

“[r]unning surface waters are not constantly present but are temporary and come as 

a result of rain or snow.” Id. at 251. Based on these findings, the court concluded 

that “[t]he allegations [were] not sufficient to indicate a physical invasion *** and 

there [was] no showing that any property was actually taken in connection with the 

improvement.” Id. at 252. Therefore, the court affirmed the circuit court’s dismissal 

of the petition for a writ of mandamus. Id. 
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¶ 19 The District and the appellate court read Pratt as establishing a bright-line rule 

that temporary flooding is not a taking. 2015 IL App (1st) 132317, ¶ 25. As already 

discussed, this court has never viewed Pratt as stating a categorical bar, and neither 

have most panels of our appellate court. 

¶ 20 The court in Pratt merely held that the flooding that occurred in that case did 

not cause the type of damage to the property that would constitute a taking. Pratt, 

399 Ill. at 252 (“In [Kane v. City of Chicago, 392 Ill. 172 (1945),] we said, ‘We are 

of the opinion that the case before us does not, on the facts alleged, bring plaintiff’s 

case within the definition of a taking of property by invasion ***.’ What was there 

said applies here and in our opinion the allegations of the amended petition are not 

sufficient to show a taking of any of appellants’ property.”). In particular, the Pratt 

court’s focus on the issue of whether the damage “prevent[ed] the use” of the 

property indicates that damage that does prevent the use of property may constitute 

a taking. Id. at 251. 

¶ 21 Consistent with this conclusion, the United States Supreme Court in Arkansas 

Game & Fish Comm’n held that temporary flooding can give rise to a takings 

claim, when the flooding directly and immediately interferes with the owner’s 

enjoyment and use of the land. 568 U.S. at ___, 133 S. Ct. at 519. In Arkansas 

Game & Fish Comm’n, the United States Army Corps of Engineers released 

upstream waters in such a way that the Commission’s property was flooded during 

the peak growing season for timber. Id. at ___, 133 S. Ct. at 516. The flooding was 

temporary but recurred consistently over a period of six years. Id. at ___, 133 S. Ct. 

at 516. The Commission owned the property for the purpose of growing timber and 

to protect the wildlife that lived there. Id. at ___, 133 S. Ct. at 515-16. The flooding 

made it impossible for timber to grow productively on the property, and, as a result, 

the wildlife ecosystem was destroyed. Id. at ___, 133 S. Ct. at 517. The 

Commission filed suit against the government, claiming the temporary but 

recurring flooding was a taking. Id. at ___, 133 S. Ct. at 516. The Supreme Court 

noted that it has previously held that government-induced flooding can constitute a 

taking (Pumpelly v. Green Bay Co., 80 U.S. 166 (1871)), that seasonally recurring 

flooding could constitute a taking (United States v. Cress, 243 U.S. 316 (1917)), 

and that “[a] temporary takings claim could be maintained as well when 

government action occurring outside the property gave rise to ‘a direct and 

immediate interference with the enjoyment and use of the land.’ ” Arkansas Game 
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& Fish Comm’n, 568 U.S. at ___, 133 S. Ct. at 519 (quoting United States v. 

Causby, 328 U.S. 256, 266 (1946)). Thus, the Court concluded that 

“government-induced flooding of limited duration may be compensable.” Id. at 

___, 133 S. Ct. at 519. 

¶ 22 Neither Arkansas Game & Fish Comm’n nor Pratt imposes a bright-line rule or 

exception regarding whether temporary flooding constitutes a taking. Id. at ___, 

133 S. Ct. at 519 (“No decision of this Court authorizes a blanket 

temporary-flooding exception to our Takings Clause jurisprudence, and we decline 

to create such an exception in this case.”). Both indicate that courts must look to the 

facts of each case to determine whether the property owner’s use and enjoyment of 

the property has been diminished or destroyed. Therefore, these cases are 

consistent, and both decisions should inform Illinois courts when addressing 

takings claims based on temporary flooding. To the extent the appellate court in 

Luperini held that temporary flooding could not constitute a taking, that decision is 

overruled. Luperini, 265 Ill. App. 3d at 89. 

¶ 23 Having established that in some circumstances temporary flooding can 

constitute a taking, the court is now faced with the question of whether plaintiffs 

sufficiently alleged a violation of the Illinois takings clause. “ ‘When this court 

accepts an appeal involving a question of law identified under Rule 308, interests of 

judicial economy and the need to reach an equitable result oblige us to go beyond 

the question of law presented and consider the propriety of the order that gave rise 

to the appeal.’ ” Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 153 (2007) 

(quoting Bright v. Dicke, 166 Ill. 2d 204, 208 (1995)). “Determining whether there 

has been an actionable taking is a question of law,” which this court reviews 

de novo. ProLogis, 236 Ill. 2d at 77. The District challenged plaintiffs’ takings 

clause claim by filing a motion to dismiss. “The critical inquiry in determining 

whether a pleading should be dismissed *** is whether the allegations, when 

construed in the light most favorable to the plaintiff, are sufficient to establish a 

cause of action upon which relief may be granted.” Sorrells v. City of Macomb, 

2015 IL App (3d) 140763, ¶ 22 (citing Kanerva v. Weems, 2014 IL 115811, ¶ 33). 

¶ 24 The court has defined a taking as a physical invasion of private property or the 

radical interference with a private property owner’s use and enjoyment of the 

property. Forest Preserve District, 161 Ill. 2d at 456-57. This court has also held 
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that a taking occurs when real estate is physically invaded “by superinduced 

additions of water *** so as to effectually destroy or impair its usefulness.” Horn,

403 Ill. at 554. Flooding that does not cause this level of destruction is not a taking. 

Pratt, 399 Ill. at 252; see Hartwig v. United States, 485 F.2d 615, 619 (Ct. Cl. 1973) 

(“ ‘The essential inquiry [in taking cases arising out of a flood situation] is whether 

the injury to the claimant’s property is in the nature of a tortious invasion of his 

rights or rises to the magnitude of an appropriation of some interest in his property 

permanently to the use of the Government.’ ” (quoting National By-Products, Inc. 

v. United States, 405 F.2d 1256, 1273-74 (Ct. Cl. 1969))). 

¶ 25 The Court in Arkansas Game & Fish Comm’n set forth additional factors that 

assist in determining whether a temporary flooding constitutes a taking. 568 U.S. at 

___, ___, 133 S. Ct. at 519, 522-23; see Sorrells, 2015 IL App (3d) 140763, ¶ 27. 

As we have already determined that a “taking” is defined in the same way under 

federal and state law, we find the factors used by the federal court helpful in 

analyzing a taking claim under the Illinois Constitution. We recognize that 

Arkansas Game and Fish Comm’n had not yet been decided when plaintiffs filed 

their complaints. However, because the incorporation of this decision does not 

involve a significant change in Illinois law, we find it appropriate to consider these 

factors when reviewing plaintiffs’ consolidated complaint. These factors include 

the time and duration of the flooding, whether the invasion of the property was 

intentional or whether it was a foreseeable result of an authorized government 

action, and the character of the land and the owner’s reasonable investment-backed 

expectations regarding the land’s use. Arkansas Game & Fish Comm’n, 568 U.S. at 

___, 133 S. Ct. at 522-23. 

¶ 26 The complaint in this case addresses only one instance of flooding. Plaintiffs 

have not alleged that the flooding is recurring or that the water remained on their 

properties for a prolonged period of time. They do not allege that the damage 

caused could not be satisfactorily repaired. In their brief before this court, plaintiffs 

state that they are seeking “compensatory damages for the value of lost possessions 

and the cost of repairing their homes.” Plaintiffs have not addressed whether the 

flooding was intentional or whether the District knew or should have known that 

the flooding of plaintiffs’ properties would occur. In their brief, plaintiffs assert that 

the District’s acts were intentional and imply that the District acted to avoid 

flooding at O’Hare International Airport. Their complaint does not, however, 
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address whether the District intended or knew that the diversion would cause the 

creeks to overflow or otherwise that the actions taken would cause the flooding. 

Finally, the properties involved are residential properties. Therefore, plaintiffs have 

an investment-backed expectation that they will be able to use their properties for 

the purpose of maintaining homes. However, plaintiffs’ complaint states only that 

“Members of the class were deprived of the use of their homes.” They offer no 

explanation for how they were deprived of the use of their home or otherwise 

support this claim. Therefore, plaintiffs’ amended complaint fails to sufficiently 

allege that the temporary flooding that occurred in this case constitutes a taking 

under the Illinois Constitution. 

¶ 27 Alternatively, plaintiffs assert in their complaint that they are entitled to 

compensation under the takings clause for damage to their properties. As discussed, 

the Illinois takings clause reaches beyond the scope of the federal takings clause 

and provides a remedy for owners whose property is damaged by some government 

action. When “the owner of property is seeking to recover the just compensation 

guaranteed by the constitution for the lawful damaging of private property for 

public use, the burden is upon such owner to establish the existence and amount of 

the damage he claims.” Kane v. City of Chicago, 392 Ill. 172, 177 (1945). Property 

is considered damaged for purposes of the takings clause if there is “any direct 

physical disturbance of a right, either public or private, which an owner enjoys in 

connection with his property; a right which gives the property an additional value; a 

right which is disturbed in a way that inflicts a special damage with respect to the 

property in excess of that sustained by the public generally.” Citizens Utilities Co. 

of Illinois v. Metropolitan Sanitary District of Greater Chicago, 25 Ill. App. 3d 

252, 256 (1974) (discussing the definition of “damaged” established in Rigney v. 

City of Chicago, 102 Ill. 64 (1881)). Where no property is actually taken, an owner 

of damaged property may assert a right to compensation in an action at law. Illinois 

Power & Light Corp. v. Peterson, 322 Ill. 342, 347 (1926). Whether claimed by the 

owner as a plaintiff in an action at law or as a defendant in an eminent domain 

proceeding, “the right to damages is the same and is based on the [takings clause].” 

Id. 

¶ 28 The certified question on appeal is limited to the meaning of “takings” alone, 

not of damaged property within the Illinois takings clause. Therefore, the lower 

courts have not yet had the opportunity to review whether plaintiffs have alleged a 
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sufficient claim for compensation for damaged property. We decline to review the 

merits of this argument at this time.

¶ 29 We reverse the judgment of the appellate court and remand this cause to allow 

the circuit court to consider the entirety of plaintiffs’ claim in light of this opinion. 

Plaintiffs should have the opportunity to amend their takings clause claim on 

remand.

¶ 30 CONCLUSION

¶ 31 The takings clause of the Illinois Constitution provides greater protection for 

property owners than its counterpart in the United States Constitution, because it 

provides a remedy for property that is damaged, in addition to property that is 

taken. However, what constitutes a taking is the same under both clauses. 

Therefore, the Supreme Court’s holding in Arkansas Game & Fish Comm’n is 

relevant to the determination of whether government-induced temporary flooding 

is a taking pursuant to the Illinois Constitution. 

¶ 32 The holding in Arkansas Game & Fish Comm’n does not conflict with the 

holding in Pratt to any extent, because the court in Pratt did not hold that 

temporary flooding can never constitute a taking. The court in Pratt merely held 

that the flooding that occurred in that case did not rise to the level of a taking. 

Similarly, the facts alleged in plaintiffs’ amended complaint are not sufficient to 

allege a taking under the Illinois takings clause. The complaint does not allege that 

the flooding “radically interfered” with plaintiffs’ use and enjoyment of their 

properties. 

¶ 33 Plaintiffs alternatively claim that the flooding damaged their properties and 

therefore that they are entitled to compensation under the Illinois takings clause. 

The Illinois takings clause provides that the owner of damaged property has a right 

to just compensation, but the parties have not briefed this court on the issues 

surrounding plaintiffs’ damage claim. We remand this case to the circuit court for 

further proceedings consistent with this opinion. 
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¶ 34 Reversed and remanded with directions. 

¶ 35 JUSTICE BURKE, specially concurring:

¶ 36 While I agree with the judgment rendered in this case, my reasoning differs in 

certain respects from that of the majority. 

¶ 37 At the outset, the question certified by the circuit court asks whether the United 

States Supreme Court, in Arkansas Game & Fish Comm’n v. United States, 568 

U.S. ___, 133 S. Ct. 511 (2012), “overruled” this court’s decision in People ex rel. 

Pratt v. Rosenfield, 399 Ill. 247 (1948). Supra ¶ 2. There is a problem with this 

question that is immediately apparent. Arkansas Game & Fish Comm’n was a 

decision that interpreted the takings clause of the federal constitution (U.S. Const., 

amend. V). Pratt, on the other hand, was a decision that interpreted the takings 

clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 15). 

¶ 38 Under the supremacy clause of the United States Constitution (U.S. Const., art. 

VI, cl. 2), the United States Supreme Court can, through its interpretation of the 

federal constitution, establish separate federal law that must be given effect over 

any conflicting state law. But the Supreme Court has long held that it has no 

authority to overrule a state court’s declaration of the meaning of state law. See, 

e.g., North Carolina v. Butler, 441 U.S. 369, 376 n.7 (1979) (“this Court must 

accept whatever construction of a state constitution is placed upon it by the highest 

court of the State”); Garner v. Louisiana, 368 U.S. 157, 166 (1961); Murdock v. 

City of Memphis, 87 U.S. (20 Wall.) 590 (1874). As Judge Easterbrook has noted, 

“a federal court may not disagree with the state courts’ construction of state law. 

[Citation.] State law means what state judges say it means, just as federal law 

means (for the purposes of judges of inferior federal courts) what the Supreme 

Court of the United States concludes it means.” United States ex rel. Garcia v. 

O’Grady, 812 F.2d 347, 356 (7th Cir. 1987) (Easterbrook, J., concurring). 

¶ 39 To warrant certification under Illinois Supreme Court Rule 308 (eff. Feb. 26, 

2010), the proffered question must be one over “which there is substantial ground 

for difference of opinion.” Because it is black letter law that the United States 

Supreme Court has no authority to overrule this court’s interpretation of our state 
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constitution, there can be no “substantial ground for difference of opinion” over 

whether Arkansas Game & Fish Comm’n overruled Pratt. The circuit court 

therefore erred in certifying the question. 

¶ 40 Plaintiffs’ complaints alleged only a violation of the takings clause of the 

Illinois Constitution. The circuit court believed that this court’s interpretation of the 

Illinois takings clause in Pratt differed from the United States Supreme Court’s 

interpretation of the federal takings clause in Arkansas Game & Fish Comm’n. 

Given this fact, the circuit court was bound to follow and apply Illinois law to 

plaintiffs’ claims. Plaintiffs were always free to file separate federal claims.1

¶ 41 Because the circuit court erred in certifying the question, the appellate court 

was bound to dismiss the appeal. However, since the issue is now before us, the 

question remains whether this court should now incorporate the reasoning of 

Arkansas Game & Fish Comm’n into our Illinois takings clause jurisprudence. In 

the interest of judicial economy, I agree with the majority that we should address 

this question. However, I cannot agree with the majority’s reasoning for adopting 

Arkansas Game & Fish Comm’n as a matter of Illinois law. The majority holds that 

we should adopt the analysis in Arkansas Game & Fish Comm’n because it is 

“consistent” with Pratt and “does not involve a significant change in Illinois law.” 

Supra ¶¶ 17, 21, 22, 25. This is patently incorrect on the face of these decisions. 

¶ 42 In Arkansas Game & Fish Comm’n, the Supreme Court held that, because 

government-induced flooding can constitute a taking of property, and because a 

taking need not be permanent to be compensable, “government-induced flooding of 

limited duration may be compensable” under the federal takings clause. Arkansas 

Game & Fish Comm’n, 568 U.S. at ___, 133 S. Ct. at 519. In so holding, the Court 

emphasized that the particular facts and circumstances of each case must be

evaluated in determining whether temporary flooding constitutes a taking. Id. at 

___, 133 S. Ct. at 521. In particular, the Supreme Court instructed that the 

following factors are to be considered: (1) the length of time of the physical 

invasion; (2) the “degree to which the invasion is intended or is the foreseeable 

result of authorized government action”; (3) “the character of the land at issue and 

 1

Plaintiffs moved in the circuit court for leave to amend their complaints to include a claim 

based on the federal takings clause. It appears from the record that the motion remains pending. 
- 16 - 

the owner’s ‘reasonable investment-backed expectations’ regarding the land’s 

use”; and (4) the “[s]everity of the interference.” Id. at ___, 133 S. Ct. at 522.2 

¶ 43 Importantly, Pratt did not consider any of the above factors as relevant to the 

required Illinois takings clause analysis. In Pratt, the court noted the “grave” nature 

of the damages to plaintiffs’ property from government-induced temporary 

flooding. Pratt, 399 Ill. at 251-52. These damages included damaged or destroyed 

valuable equipment, machinery, and supplies, as well as the necessity to change the 

floor levels, at great expense to the plaintiffs. Id. at 251. Nevertheless, the court 

held, because the floodwaters were merely temporary and not “constantly present,” 

plaintiffs were unable to state a claim under the Illinois takings clause. Id. Thus, the 

Pratt court rejected plaintiffs’ claim solely based on the temporary nature of the 

flooding. This court did not recognize the Arkansas Game & Fish Comm’n factors, 

much less give them any weight in our takings analysis, because we did not even 

recognize a cause of action for a temporary flooding. 

¶ 44 The majority now finds that Arkansas Game & Fish Comm’n is completely 

consistent with Pratt. This is clearly incorrect. Because the two cases cannot be 

reconciled, incorporating Arkansas Game & Fish Comm’n into Illinois takings law 

means that we are now implicitly overruling our own decision in Pratt. In my view, 

this court should explicitly overrule Pratt. 

¶ 45 Under the “limited lockstep” approach for interpreting cognate provisions of 

our state and federal constitutions, when the language of the provisions within our 

constitutions is nearly identical, departure from the United States Supreme Court’s 

construction of the provision will generally be warranted only if we find an 

indication in the language of our constitution, debates, or committee reports of the 

constitutional convention that the provisions of our state constitution are to be 

construed differently than are similar provisions in the federal constitution. Hope 

Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶ 47. While the language in the 

Illinois takings clause is not identical to the federal takings clause, the part of the 

clause referring to “[p]rivate property *** taken *** for public use without just 

 2

The majority expressly incorporates into Illinois law the first three factors discussed in 

Arkansas Game & Fish Comm’n but makes no mention of the fourth, the “severity of the 

interference” caused by the invasion. Supra ¶ 25. The majority offers no explanation for this

discrepancy.
- 17 - 

compensation” is identical. Ill. Const. 1970, art. I, § 15; U.S. Const., amend. V. 

Thus, courts have traditionally defined a “taking” under the Illinois takings clause 

in the same way that federal courts define a “taking” under the federal takings 

clause. See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 

455-58 (1994); Muscarello v. Winnebago County Board, 702 F.3d 909, 913 (7th 

Cir. 2012). No language in the constitution, debates, or committee reports dictates a 

different result. Thus, pursuant to the limited lockstep doctrine, it is appropriate to 

overrule Pratt and to adopt the multifactor test set forth in Arkansas Game & Fish 

Comm’n for purposes of determining whether temporary flooding constitutes a 

“taking” under the Illinois Constitution. 

¶ 46 Finally, I agree with the majority that adopting the analysis in Arkansas Game 

& Fish Comm’n requires us to allow plaintiffs to amend their claims upon remand 

to the circuit court. Supra ¶ 29. Plaintiffs’ complaints were filed in July 2011. 

Arkansas Game & Fish Comm’n, which determined that temporary, 

government-induced flooding may give rise to a claim under the federal takings 

clause, was decided in December 2012. Not only was Arkansas Game & Fish 

Comm’n decided more than a year after plaintiffs filed their complaints, it was not 

until today’s opinion—more than four years after plaintiffs filed their 

complaints—that the reasoning of Arkansas Game & Fish Comm’n was first 

incorporated into Illinois law. Thus, it is appropriate that, upon remand to the 

circuit court, plaintiffs should be allowed to amend their complaints to address the 

factors in Arkansas Game & Fish Comm’n, if they are able to do so. See Karas v. 

Strevell, 227 Ill. 2d 440, 461 (2008). 

¶ 47 For the foregoing reasons, I specially concur.

¶ 48 JUSTICES FREEMAN and KILBRIDE join in this special concurrence.