For nearly a century, the DeVillier family raised cattle and grew crops on the 900-acre property without incident — until the Texas Department of Transportation started a highway project that had serious implications for DeVillier’s land.
In the early 2000s, the state renovated Interstate 10, elevating and broadening the highway and erecting concrete barriers. The construction trapped the DeVillier property, turning his farm into a lake whenever the region experienced heavy rains, as it did in 2017 during Hurricane Harvey.
“The water started to rise on August 28,” DeVillier recalled . “Our home was completely flooded by August 29.”
When DeVillier says his “home,” he’s not talking about just his house. Video footage shows his entire farm submerged, with cows standing chest-deep in water; fields where the family once grew rice and olives can be seen totally flooded.
“Two years later, it happened again,” said DeVillier. “My family has worked this land for generations, and we’ve never experienced the devastating flooding that has now become a terrifying norm.”
Some 100 cows and horses were killed in the flooding, and countless crops were lost. Yet the state has refused to compensate DeVillier, which prompted him to sue for damages.
This is where DeVillier’s case gets interesting.
In November, the United States Court of Appeals for the Fifth Circuit punted on the matter, arguing that federal courts have no jurisdiction in takings cases against states. (A "taking" isn't necessarily seizing the property; an action that substantially alters a property is legally defined as a taking in tort law.)
The court didn’t rule against DeVillier. It simply said that Congress never passed a law allowing Americans to sue states for taking their property, so the Fifth Amendment’s property protections do not apply to DeVillier or anyone else.
The court’s reasoning is strange. Not only does the Constitution explicitly state that no person shall be “deprived of life, liberty, or property, without due process of law … [or] without just compensation,” but the high court weighed in on this issue as recently as 2019.
In Knick v. Township of Scott , Chief Justice John Roberts made it clear that property owners do not need to exhaust state courts before seeking redress at the federal level, stating that a “property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it."
George Mason University law professor Ilya Somin said it’s “simply false” that federal courts lacked the jurisdiction to hear DeVillier’s case, and in March urged the Supreme Court to take up the matter.
Last month, the Supreme Court did just that , and DeVillier’s attorneys sound optimistic that the high court will rule in their client’s favor.
“If there is one basic principle in property law, it’s the Pottery Barn Rule: You break it, you buy it,” said Robert McNamara, an attorney for the Institute for Justice who is representing the family. “The Fifth Circuit’s decision in this case amounts to ‘you pay if you feel like it.’”
The court’s decision will obviously have serious consequences for DeVillier, who suffered millions in property damage. But it will also have consequences for all Americans.
Property rights aren’t just the key to economic growth. They are the basis for all human rights, many argue.
While we tend to think of certain rights as distinct from property rights, the economist Murray Rothbard once observed that human rights and property rights are inseparable. It's a person's inalienable right over himself, which he owns, that gives him the right to assemble freely and to speak freely, and to be secure in his effects “against unreasonable searches and seizures.”
“A man’s right to personal freedom, then, is his property right in himself,” Rothbard wrote.
Rothbard is on firmer ground than one might think. According to the philosopher John Locke, the point of the social contract is to secure human rights over property (including our bodies).
That the government, which was created to secure these rights, has become the single greatest transgressor of human rights is a sad irony, one that was not lost on the 19th-century economist Frederic Bastiat, who described it as a “perversion.”
Few know this better than Richie DeVillier, whom the state of Texas is trying to stiff after destroying his farm.
Fortunately, the Supreme Court has a chance to make amends. If it does, it will not just be a win for DeVillier. It will be a win for justice.