Inverse condemnation in Alabama is a cause of action built almost entirely on constitutional text rather than statutory infrastructure—which makes it both more powerful and more precarious than its federal-law counterpart. A practitioner who understands the interplay between Article I, § 23, and § 235 of the Alabama Constitution of 1901, and who is alert to the doctrinal boundaries drawn by Willis v. University of North Alabama and Town of Gurley v. M&N Materials, is positioned to evaluate claims that would otherwise be dismissed at the threshold.
I. The Dual Constitutional Framework
Alabama property owners can invoke two constitutional provisions to support an inverse condemnation claim, and the applicable provision shapes every element of the case.
A. Article I, § 23 — The General Takings Clause
Article I, § 23 of the Alabama Constitution provides that "private property shall not be taken for, or applied to, public use, unless just compensation be first made therefor." This tracks the federal Takings Clause of the Fifth Amendment and applies to the State and its agencies. The Alabama Supreme Court, in Willis v. University of North Alabama, 826 So. 2d 118 (Ala. 2002), drew a sharp doctrinal line: a claim under § 23 requires an actual taking or application to public use. A mere diminution in market value—no matter how severe—is constitutionally insufficient. Willis explicitly overruled earlier decisions (including Foreman v. State, 676 So. 2d 303 (Ala. 1995), and Barber v. State, 703 So. 2d 314 (Ala. 1997)) that had permitted § 23 claims on a showing of mere "injury" to property value. After Willis, the plaintiff under § 23 must show that the governmental action occupied or otherwise appropriated the property for public use—not simply that it reduced the property's value.
B. § 235 — Municipal Inverse Condemnation
The more practically important provision for municipal defendants is § 235, which provides that municipal corporations and other entities invested with the power of eminent domain "shall make just compensation . . . for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements." Several features of this text distinguish it structurally from § 23:
- Broader coverage of harm. Section 235 reaches not only property "taken" but also property "injured or destroyed." Traditionally, courts have read this to encompass physical damage resulting from government construction activity, even where no formal appropriation occurs. This includes, for example, water diversion causing flooding, encroachment during highway construction, or pipeline damage resulting from public works.
- Narrower triggering event. Section 235 applies specifically to damage caused by "the construction or enlargement of its works, highways, or improvements." The Alabama Supreme Court, in Town of Gurley v. M&N Materials, Inc., 143 So. 3d 1 (Ala. 2012), unanimously held that purely regulatory or legislative acts—zoning changes, moratoriums, denial of business licenses—do not constitute "construction or enlargement" within the meaning of § 235. A regulatory taking is simply not compensable under the Alabama Constitution in state court.
- Abutting-owner limitation. Section 235 has historically been applied to plaintiffs whose property directly abuts or is directly affected by the physical work. McClendon v. City of Boaz, 395 So. 2d 21, 24 (Ala. 1981), defined inverse condemnation generally as the taking of private property for public use without formal condemnation proceedings and without just compensation by a governmental agency with the right or power of condemnation.
- Physical-injury threshold. After Willis and M&N Materials, Alabama state courts recognize no constitutional inverse condemnation claim founded solely on a reduction in market value. The government's action must physically invade, disturb, or appropriate the property.
C. The Critical Gap: Regulatory Takings
As a practical matter, purely regulatory takings—where no physical invasion or construction activity occurs—are remediable in Alabama only through a federal § 1983 claim under the Fifth Amendment's Takings Clause, not through state inverse condemnation. Williamson County ripeness concerns have largely been resolved in favor of plaintiffs by Knick v. Township of Scott, 588 U.S. 180 (2019), which eliminated the state-litigation prerequisite. Federal court is therefore the correct forum when your client's injury flows from a land-use regulation rather than from physical government construction.
II. The Foundational Cases
*Ex parte Carter, 395 So. 2d 65 (Ala. 1980):* The Alabama Supreme Court stated that an action claiming inverse condemnation "is very limited and all elements must be present." This framing, while brief, has proved durable—and signals that trial courts will require specificity at the pleading stage.
*McClendon v. City of Boaz, 395 So. 2d 21 (Ala. 1981):* Defines inverse condemnation in the context of a city's widening and realignment of a creek that caused flooding damage to nearby property. The court found that a § 235 claim requires a taking connected to the construction or enlargement of municipal works.
*Jefferson County v. Southern Natural Gas Co., 621 So. 2d 1282 (Ala. 1993): One of the more useful decisions for modern pleading practice. The court distinguished formal condemnation from inverse condemnation and confirmed that when a governmental authority physically occupies or injures property without initiating proceedings, the property owner's remedy is an inverse condemnation action seeking just compensation. The case involved pipeline easements and is frequently cited for the proposition that the burden of proving the extent and value of the taking rests with the property owner. City of Tuscaloosa v. Patterson*, 534 So. 2d 283 (Ala. 1988), similarly confirmed that the measure of damages is the difference between fair market value before and after the government's construction or enlargement.
*Willis v. University of North Alabama, 826 So. 2d 118 (Ala. 2002):* The modern boundary marker. Physical taking or application to public use is required under § 23; mere diminution is insufficient. This decision substantially narrowed the § 23 pathway and elevated the importance of § 235 for claims involving physical government works.
*Town of Gurley v. M&N Materials, Inc., 143 So. 3d 1 (Ala. 2012):* Regulatory takings (legislative or executive acts restricting property use without physical invasion) are not cognizable under either § 235 or § 23 in Alabama state court. The unanimous court confirmed that § 235 requires physical injury from construction or enlargement, and § 23 requires actual taking or application to public use. This remains controlling.
III. Statutory Infrastructure: Ala. Code § 18-1A-32
Ala. Code § 18-1A-32 provides the only significant statutory overlay: a successful plaintiff in an inverse condemnation action is entitled to recover litigation expenses, including attorneys' fees and court costs, as part of the judgment or settlement. The statute also expressly prohibits a condemnor from intentionally making it necessary for an owner to file an inverse condemnation action. These two provisions carry real teeth. The fee-shifting provision means that a documented case of physical governmental taking with a clear damages measure can often be litigated without the contingency-fee risk that plagues other constitutional claims.
Note that § 18-1A-32 does not itself confer a right of action for inverse condemnation—the Alabama Eminent Domain Code explicitly provides that it does not purport to regulate inverse condemnation claims except to allow recovery of litigation expenses. The substantive right derives exclusively from the constitutional provisions discussed above.
IV. Practice Notes: Pleading, Proof, and Limitations
A. Drafting the Complaint
A well-pleaded Alabama inverse condemnation complaint should:
- Identify the constitutional basis with precision. Plead § 235 separately from § 23; they have different elements. If the defendant is a municipality or entity with eminent domain power, lead with § 235. If the claim involves the State, the § 23 claim is the primary vehicle.
- Allege physical injury. Affirmatively plead that the government's action physically invaded, damaged, or destroyed the property. Identify the specific construction project, highway improvement, or public work that caused the harm. A complaint that alleges only value-diminishing regulatory action will not survive a motion to dismiss after M&N Materials.
- Allege litigation expense entitlement. Include a count or prayer invoking § 18-1A-32 to ensure that attorneys' fees are preserved.
- Name the right defendant. Inverse condemnation actions in Alabama are brought against the governmental official(s) in their representative capacity in the county where the official resides, not against the governmental entity itself (absent a specific statutory or constitutional waiver). This procedural nuance differs from federal § 1983 practice.
B. Damages and Valuation
The standard measure is the difference in fair market value before and after the governmental action. City of Tuscaloosa v. Patterson, 534 So. 2d 283 (Ala. 1988). The property owner bears the burden of proving the existence and extent of the damage. Expert appraisal testimony is typically required. Consequential damages (such as costs of remediation, loss of access, or interference with business operations connected to the land) may be available under § 235 where the physical injury foreseeably caused those losses, but Alabama courts have generally limited recovery to property-value measures rather than personal business losses. Thompson v. City of Mobile, 199 So. 862 (Ala. 1941).
C. Statute of Limitations
The limitations period varies by defendant type and theory, and deadlines are strictly enforced:
- Claims against municipalities under § 235: Alabama courts have applied a two-year statute of limitations, accruing from the time the taking is complete. Long v. City of Athens (as discussed in municipal liability resources). Practitioners should also be aware of Ala. Code § 11-47-23, which imposes a six-month notice and presentment requirement for tort claims against municipalities—though inverse condemnation claims grounded in the constitution have been treated somewhat differently than ordinary tort claims. This is a live issue and the applicable deadline should be researched and confirmed for each specific factual context.
- Claims against counties: The Alabama two-year catch-all period under Ala. Code § 6-2-38 has been applied in county inverse condemnation cases.
- Claims against the State: Sovereign immunity issues make the pathway more complex; the § 23 claim and legislative waiver analysis should be carefully evaluated.
The accrual date is generally the date on which the taking is complete and ascertainable to the property owner—not necessarily the date the government's project begins.
V. Where the Law Is Moving
The M&N Materials holding has been criticized in concurring opinions by Justices who believe Willis was wrongly decided and that § 23 should be read more broadly to encompass governmental injury to property without physical taking. That argument has not prevailed but remains alive. Practitioners handling regulatory-impact cases that involve physical construction components should plead both constitutional theories aggressively, preserving the argument that physical construction adjacent to the parcel triggered § 235 liability even where the primary harm was regulatory.
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.