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Ranchers say the state flooded their lands, killing animals. The Supreme Court will decide if Texas has to pay

The DeVilliers have ranched in Texas for nearly a century. They say their land never flooded until the state raised Interstate 10. Now they're headed to the Supreme Court.

Richie DeVillier steered his boat around floating carcasses. His son leaned over the edge of the boat, holding a calf's head above the floodwaters as they tried to lead the shell-shocked animal to higher ground.

Many of the living cattle they had found so far would not survive the next few days. Their bodies were already bloated from standing in water for so long, the coarse black hair sloughed away in patches.

The DeVilliers lost about 60 of their 300 cows and calves, plus seven horses.

"You love your animals," DeVillier said. "It's hard enough seeing a cow drowned. But horses are a different thing. Horses are parts of our souls."

"That was one of the most horrible things that I've had to go through," he added.

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Texas authorities called Hurricane Harvey and the damage it caused in 2017 an "Act of God." But as DeVillier drove away from his ranch on Interstate 10, he saw a lake on the north side of the road where his ranch was located. The south side was dry.

"We were artificially in the bowl that's created by the highway construction," he said. "God didn't do that. Man made that."

In January, the Supreme Court will hear DeVillier's case and consider his argument that Americans like him should be compensated when state governments damage their property.

DeVillier's family has lived and ranched in Winnie, Texas, since the early 1900s when his great-grandfather homesteaded the land. In all that time, their 900 acres had never flooded. Water naturally flowed south to the Gulf of Mexico, DeVillier said.

But then around the turn of the 21st century, the Texas Department of Transportation renovated Interstate 10 along the ranch, widening the highway, raising it a foot and a half and adding an impermeable, nearly three-foot-high concrete barrier along the middle of it, according to DeVillier and his lawyers at the nonprofit Institute for Justice.

The ranch turned into a lake when Hurricane Harvey hit. The DeVilliers used a tractor to help their neighbors get through the floodwaters. Knee-deep water filled their house.

WATCH MORE FOX NEWS DIGITAL ORIGINALS HERE 

When the DeVilliers were able to return in a bass boat, they saw dead animals everywhere. Calves were tangled in flotsam, drifting near the barn. Luckier cattle had huddled together around the house and garage, the highest elevation points on the property. Some had even gotten into the saddle room.

Once the water finally receded, DeVillier spent the following days disposing of carcasses while friends and family gutted his home.

"We didn't have flood insurance," he said. "We had to go get an SBA loan and basically just $250,000 to rebuild our home, our barns, equipment, try to restock our cattle."

Two years later, Tropical Storm Imelda hit and their ranch flooded again. As DeVillier stood in two feet of water, he felt a sense of "clarity."

"I felt God was talking to me at that point in time, and it became clear to me what my path forward was," he said. "We're going to get this solved, and I'm not going to quit." 

The DeVilliers and their neighbors sued, arguing that Texas can turn their farms into a lake if it needs to, but not without paying the property owners. They pointed to the Fifth Amendment of the Constitution, which protects Americans against the taking of property by the government without compensation.

"When your government can take from you at will what they want and you have no redress, that's straight up tyranny," DeVillier said.

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"Most people are familiar with the Pottery Barn rule, which is if you break it, you buy it," IJ Deputy Litigation Director Robert McNamara told Fox News. "But that's not just the rule at the Pottery Barn. That's the rule in the Constitution. If the government destroys your property, the government has to pay for it."

But Texas argued that the Takings Clause in the Fifth Amendment doesn't apply since it doesn't explicitly indicate that state governments, rather than the federal government, must provide just compensation for property it seizes or damages. The state doesn’t admit or deny in court documents that raising the interstate caused the flooding.

The Supreme Court is slated to hear the case on Jan. 16.

The Texas attorney general's office did not respond to a request for comment on the case.

Texas also argues in court filings that the plaintiffs sued too long after Hurricane Harvey occurred for it to be included in their claims and that the state is protected from liability for damages by sovereign immunity.

"This case isn't just about Richie and his neighbors. This case is fundamentally about whether any American anywhere can force the government to obey the promises of the Constitution," McNamara said. "We say the answer is yes. Texas says the answer is only if they feel like it. And the Supreme Court is going to tell us which one of us is right." 

To hear more from DeVillier and to see video of the floods, click here.

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