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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2007-2008

1061151

Andrew Baugus et al.
v.
City of Florence
Appeal from Lauderdale Circuit Court
(CV-03-30)

LYONS, Justice.

Andrew Baugus and 11 other individuals (hereinafter "the
landowners") who own real property adjacent to a landfill
operated by the City of Florence (hereinafter "the City") sued
the City, alleging nuisance, negligence, trespass, strict

liability, and inverse condemnation. The Lauderdale Circuit
Court entered a summary judgment in favor of the City, and the
landowners appealed. Because the summary judgment was not a
final judgment, we dismissed the appeal and remanded the case
to the trial court for further proceedings. Baugus v. City of
Florence, [Ms. 1051593, January 12, 2007] __ So. 2d __ (Ala.
2007). The trial court then entered a summary judgment in
favor of the City on all claims, and the landowners again
appealed. We affirm in part and reverse in part.

I. Facts and Procedural History

The landowners sought damages for nuisance, negligence,
trespass, and strict liability against the City, arising from
the City's operation of a landfill. The landowners also
asserted an inverse-condemnation claim, alleging that the
City's placement and monitoring of methane-measuring pipes on
their properties constitutes a taking and/or damage to their
properties.

The City opened the landfill sometime between 1969 and
1972. The landfill is adjacent to 9 parcels of property
belonging to the 12 landowners. Each landowner purchased his
or her respective property in or before 1993, and 8 of the 12

landowners reside on their property. The remaining four
landowners own the houses on their properties, but do not
reside there.

The City contends that the landfill closed in 1987 or
1988 and that it has not operated as a landfill since that
time. The landowners contend that the City never officially
closed all areas of the landfill and that it dumped waste at
the landfill as late as 2006. A 1987 letter from the Alabama
Department of Environmental Management ("ADEM") notes that the
City is in the process of closing the landfill. Additionally,
a 1990 letter from ADEM confirms receipt of a December 29,
1989, letter from the City stating that the landfill had been
closed.

Since the closure of the landfill, the City has
maintained the site in what it describes as a "post-closure
care monitoring period." The City keeps the site vegetated,
periodically mows the vegetation, and fills in depressions
created by subsidence.  For the purpose of filling such
depressions, the City has occasionally deposited "clean fill"
-- unregulated inorganic solid such as dirt or concrete -- on
the site.

The decomposition of organic waste material in landfills
generates methane, and methane has been consistently detected
at the landfill and in the surrounding areas. Methane is an
invisible gas that can become combustible if it reaches a
sufficient concentration and a source of ignition is present.
In 1982 ADEM informed the City that methane was migrating off
the landfill above allowable limits. Again in 1984, ADEM
informed the City that methane was migrating toward the
landowners' properties. The City began monitoring for methane
gas across from the landowners' properties in May 1987. Since
at least 1991 the City has regularly measured methane levels
along the perimeter of the landfill and reported the
measurements to ADEM. From 1992 to 1998 the City quarterly
reported monitoring results to ADEM. Since 1998 the City has
monitored the perimeter of the landfill annually.

After several landowners expressed concern to a City
councilman about the migration of methane in 1994, the City
retained an engineering firm to monitor the amount of methane
on the landowners' properties. Of the 12 landowners, 11
consented to the monitoring; the 12th landowner has not
resided on her property since 1990.  In the summer of 1994,

the engineering firm installed PVC pipes in each landowner's
yard to measure methane levels. A 3/4-inch, 3-foot long PVC
pipe was inserted 2 to 2 1/2 feet in the ground at each corner
of the landowner's house.

Since September 1994, the engineering firm has taken a
monthly methane reading from the pipes and has produced a
monthly report of the level of methane detected on each
property.  By December 1994, a detectable amount of methane
was found on each property. The eight landowners who have
resided on their property since 1995 have received copies of
some or all of the monthly monitoring reports for their
property.

On March 19, 2002, pursuant to

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