Recent Condemnation Cases from Houston Courts of Appeals
Houston Opinions


Judgment for State in Inverse Condemnation Suit Reversed on Finding that State Was Not
Brownlow v. State of Texas (Tex.App. - Houston [14th Dist.] Feb. 5, 2008)(Price)(government entities,
condemnation suit, sovereign immunity)
Before Price, Chief Justice Hedges, Justice Anderson
14-07-00547-CV Charles Lynn Brownlow and Marlene H. Brownlow v. The State of Texas
Appeal from 149th District Court of Brazoria County (Judge Robert E. May)

Spencer v. Prime Site, Inc. (Tex.App.- Houston [1st Dist.] Dec. 6, 2007)(Alcala)(towed car, SJ, fraud,
evidence exclusion)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00738-CV Donald E. Spencer v. Prime Site, Inc.
Appeal from Co Crim Ct at Law No 4 of Harris County (
Judge Roberta Lloyd)

Bibai v. Nguyen (Tex.App.- Houston [1st Dist.] Nov. 15, 2007)(Higley)(PI auto, evidence, proof of
negligence, damages)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Taft, Hanks and Higley
01-07-00138-CV Charlotte Ngo Bibai and Imaobong Nda v. Dom Kim Nguyen
Appeal from Co Civil Ct at Law No 4 of Harris County  (
Hon. Roberta Lloyd)

Fort Bend County, Texas v. The Burlington Northern & Santa Fe Railway Company (Tex.App.-
Houston [14th Dist.] Jun. 21, 2007(Hudson)(Condemnation, reimbursement, plea to the jurisdiction)
VACATED AND DISMISSED: Opinion by Justice Hudson
Before Justices Brock Yates, Anderson and Hudson
14-05-01106-CV        Fort Bend County, Texas v. The Burlington Northern & Santa Fe Railway
Company--Appeal from County Court at Law No 3 of Fort Bend County (Judge Susan Griffin Lowery)


Brownlow v. State of Texas (Tex.App. - Houston [14th Dist.] Feb. 5, 2008)


Appellants Charles Lynn Brownlow and Marlene H. Brownlow ("Brownlows") appeal from the trial
court=s granting of the State=s plea to the jurisdiction on June 26, 2007.  They contend that the
State has waived sovereign immunity in their inverse condemnation claim.  The State responds that
because the soil was properly disposed of in a previous condemnation proceeding, this rendered the
Brownlows= inverse condemnation claim defective and it is barred by sovereign immunity.  We
reverse and remand.

I. Factual and Procedural Background

On April 14, 2000, the State filed a Petition for Condemnation in the County Court at Law No. 3 of
Brazoria County, Texas, to acquire an interest in 12.146 acres of land, owned by the Brownlows, for
the opening, construction and maintenance of a detention facility (a pond that would retain water) as
part of the State=s Highway 35 widening project.  The pond was to have a fill volume of 84,747 cubic
meters, requiring 87,544 dirt to be displaced.  The Petition for Condemnation initially proceeded as a
condemnation for the fee estate in the 12.146 acres.  The parties subsequently signed an Agreed
Judgment granting  the State  Aa permanent easement in the property . . . for the purpose of
opening, constructing, and maintaining a detention/mitigation facility in, over, and across the tract of
land for the purpose of making additions to, improvements on, and repairs to said detention facility or
an part thereof . . .@ and granted the Brownlows A[$55,000.00] for the interests in the properties
herein condemned; and for damages, if any, to Condemnees= remaining lands.@

The State then began to remove 87,544 cubic meters of dirt and use it in another section of the
Highway 35 widening project. The Brownlows protested that the excavated soil was not part of the
permanent easement condemnation.  They contend that as the fee simple owners of the 12.146
acres the soil belongs to them; hence the State=s appropriation of the soil requires an additional
condemnation with separate compensation.

II.  Law and Standard of Review

A. Plea to the Jurisdiction

Subject-matter jurisdiction is essential to a court=s authority to act.  Con=t Coffee Prods. Co. v.
Cazarez, 937 S.W.2d 444, 448 n.2 (Tex. 1996).  Hence, the plaintiff has the burden to plead facts
affirmatively demonstrating the trial court has jurisdiction.  State v. Holland, 221 S.W.3d 639,642
(Tex. 2007). Upon a finding that the court lacks subject matter jurisdiction, the court must dismiss the
suit.  Jansen v. Fitzpatrick, 14 S.W.3d 436, 431 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  A
plea to the jurisdiction raises a question of law that we review de novo. Holland, 221 S.W.3d at 642;
C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389, 394 (Tex. 2007); Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000).  A plea to the jurisdiction is a dilatory plea intended to defeat a cause
of action without regard to the merits of the asserted claims. See Bland Indep. Sch. Dist, 34 S.W.3d at

A plea to the jurisdiction, based on defendant=s sovereign immunity, challenges a trial court's
jurisdiction without regard for the merits of the claims.  Holland, 221 S.W.3d 639; Bland Indep. Sch.
Dist., 34 S.W.3d at 554; Dahl ex rel. Dahl v. State, 92 S.W.3d 856, 860 (Tex. App.CHouston [14th
Dist.] 2002, no pet.).  If the relevant undisputed evidence negates jurisdiction, a plea to the
jurisdiction must be granted.  Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 225-26
(Tex. 2004).  In some instances, however, a plea to the jurisdiction may require the court to consider
evidence pertaining to jurisdictional facts that go beyond the pleadings.  Holland, 221 S.W.3d at 643;
see also Bland Indep. Sch. Dist., 34 S.W.3d at 555. But the court should confine itself to the evidence
relevant to those jurisdictional issues.  Tex. Natural Res. Conservation Comm=n v. White, 46 S.W.3d
864, 868 (Tex. 2001); Bland Indep. Sch. Dist., 34 S.W.3d at 555; Dahl ex rel. Dahl, 92 S.W.3d at 860.
  A plea should not be granted if there is a fact issue as to the court's jurisdiction. Holland, 221
S.W.3d at 643.

B.  Sovereign Immunity and Inverse Condemnation Claims

Absent an express waiver of sovereign immunity, the State is presumed immune from suit.  Holland,
221 S.W.3d at 643; State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006); Fed Sign v. Tex. S. Univ.,
951 S.W.2d 401, 405 (Tex. 1997).  Sovereign immunity includes two distinct principles, immunity from
suit and immunity from liability.  Tex. Dept. Of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224
(Tex. 2004).  While immunity from liability is an affirmative defense, immunity from suit deprives a
court of subject-matter jurisdiction. Id.  

Sovereign immunity , however, is waived pursuant to the takings clause of Article I, section 17 of the
Texas Constitution.  See Holland, 221 S.W.3d at 643; Gen. Servs. Comm=n v. Little-Tex Insulation
Co., 39 S.W.3d 591, 598 (Tex. 2001); Dahl, 92 S.W.3d at 862.  The takings clause provides: ANo
person=s property shall be taken, damaged, or destroyed for or applied to public use without
adequate compensation being made, unless by the consent of such person.@  Tex. Const. Art. I, '
17.  To establish a takings claim under Article I, section 17, the claimant must show that a
governmental actor acted: (1) intentionally; (2) took or damaged property; and (3) did so for a public
use.  Holland, 221 S.W.3d at 643; Gen. Servs. Comm=n, 39 S.W.3d at 598.  A condemnation is the
procedure by which the State compels the transfer of property, from a private owner, for public use,
and compensates that owner.  A.C. Aukerman Co. v. State, 902 S.W.2d 576, (Tex. App.CHouston
[1st Dist.] 1995, writ denied).   Inverse condemnation, by contrast, occurs when the owner of the
property, alleging the State took the property without proper process or proceedings, seeks
compensation.  City of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex. 1971).   In order for
there to be a taking, the plaintiff must have a compensable interest in the property at issue.  Fort
Worth Concrete Co. v. State, 416 S.W.2d 518, 521-523 (Tex. App.CFort Worth 1967, writ ref=d
n.r.e.).  Whether the particular facts are sufficient to constitute a taking is a question of law for the
court.  Gen. Servs. Comm=n, 39 S.W.3d at 598.

A property owner cannot have a valid inverse condemnation claim if the property at issue was the
subject of a previous, proper condemnation or sovereign domain action.  Dahl, 92 S.W.3d at 861. If
the appellant=s pleadings demonstrate that his inverse condemnation claim covers either the
identical property lawfully condemned by the State, or an interest not recognized as separate from
that property, he has no valid inverse condemnation claim, and sovereign immunity bars the suit.  
See Dahl ex rel. Dahl, 92 S.W.3d at 861. When the inverse conversion claim is defective, the State
prevails on a claim of sovereign immunity. See Tex. Dep=t of Transp. v. City of Sunset Valley, 146
S.W.3d 637, 645-46 (Tex. 2004); Gen. Servs. Comm=n, 39 S.W.3d at 598; Dahl, 92 S.W.3d at 862.

C.  Fee Estate and Easement

A fee simple absolute title to land gives the owner the right to use the land in any way not hurtful to
others.  Calcasieu Lumber Co. v. Harris, 13 S.W. 453, 454 (1890); Southtex 66 Pipeline Co., Ltd. v.
Spoor, 238 S.W.3d 538, 547 (Tex. App.CHouston [14th Dist.], 2007, no pet.).  By contrast, an
easement is a nonpossessory interest, though it authorizes its holder to use the property for a
particular purpose.  Marcus Cable Associates, L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). While
establishment of an easement, in general terms, implies a grant of unlimited reasonable use as is
reasonably necessary and convenient, Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974), the
fee owner retains title to the land and all that is ordinarily considered part of that land.  Brunson v,
State, 418 S.W.2d 504, 506 (Tex. 1967).  

In interpreting and evaluating an express easement, we apply the basic principles of contract
construction.  Marcus Cable Associates, L.P., 90 S.W.3d at 700.   AWhen the grant=s terms are not
specifically defined, they should be given their plain , ordinary, and generally accepted meaning.  Id.
at 701.  When an easement is given, nothing passes by implication, and it is unnecessary for the
grantor to make any reservation in the grant to protect his interests in the land, for Awhat he does not
covey, he still retains.@ Id. at 701 (quoting City of Pasadena v. California-Michigan Land & Water
Co., 17 Cal.2d 576, 579, 110 P.2d 983 (1941)).

III. Analysis of Brownlows= Appeal

On April 14, 2000, the State sought a condemnation in fee simple for the 12.146 acres of land owned
by the Brownlows.  On December 13, 2002 the parties entered an agreement by which the State
obtained a permanent easement on the property Afor the purpose of opening, constructing, and
maintaining a detention facility in, over, and across such tract of land . . . with the rights at all times of
ingress, egress, and regress in over on and across, such tract of land for the purposes of making
additions to, improvements on, and repairs to said detention facility or an part thereof . . ..@  The
Brownlow=s received $55,000.00 in payment thereof.  This easement was to create a detention
facility to capture rainwater displaced by the widening of Highway 35, which required displacement of
87,544 cubic meters of dirt. The Agreed Judgment was the result of negotiation between the parties,
and the payment was for an easement alone.[1]

The Brownlows contend that they were unaware, and had not agreed, that soil would be removed
from their property in order to create the detention facility.  They contend that because no fee
interest was transferred to the State at any time the State had no right to take the soil and use it for
another purpose without additional compensation.  They argue that while the State obtained the right
to build and maintain a detention facility, it did not acquire the right to take soil from their land.  As
they point out, the Agreed Judgment says nothing about transferring ownership to the State of any
soil or granting the State any right to carry away displaced soil.  In the absence of any ambiguity, the
contract is clear on this point.  See Marcus Cable Associates, L.P., 90 S.W.3d at 700-01.[2]

    The State responds that when it possess an easement over and upon property to build and
maintain a detention facility, it has, by implication, the right to remove the soil necessary to that
purpose and the right to use that soil elsewhere without the permission of, or compensation to, the
fee owner of the estate, citing to  City of LaGrange v. Brown, 161 S.W. 8 (Tex. App. Austin 1913, writ
ref=d).  The State=s reliance upon City of LaGrange, however, is misplaced.  Insofar as the City of
LaGrange is distinguishable, applying to those cases in which the State comes into incidental
possession of soil while grading a highway, it may remain good law.[3]  But to the extent that our
opinion here contradicts this 1913, intermediate appellate case from Austin, we disagree with its
holding.  In this case the State actively negotiated and procured an easement for the single purpose
of building a water detention facility, but then proceeded to remove thousands of cubic meters of soil
from that location for a purpose unrelated to the construction of the detention facility.  While it may be
Areasonably necessary@ for the state to displace the soil to dig the detention facility, the state
provided no testimony or other evidence that it was reasonably necessary for it to cart off an
enormous amount of soil to another location not owned by the Brownlows and use it for its own
purposes.  Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974) (an easement holder has the right
to do what is reasonably necessary to carry out the intent of the easement)(emphasis added).  This
court takes judicial note that in the marketplace today soil is a valuable commodity.[4]  Having
bargained only for an easement, the State is not entitled to ownership of the extracted soil.   The
Brownlows correctly contend that the State paid only for an easement to build a detention facility, and
we find that this is exactly what it purchased.  To grant it more, by implication, would be contrary to
the express terms of the Agreed Judgment.  A party to a contract has a right to rely on the language
of the contract, and in the case of a grant of easement, the right to trust that nothing passes by
implication.  Marcus Cable Associates, L.P., 90 S.W.3d at 700-01.

IV.  Conclusion

Because the soil removed for the purpose of constructing the detention facility was neither subject to
the initial condemnation proceedings nor included within the Agreed Judgment, it remains the
property of the fee owner.  The Brownlows have sufficiently demonstrated that they have suffered
damage to, or loss of, property and hence have a valid inverse condemnation claim.  The State had a
permanent easement Afor the purpose of opening, constructing, and maintaining a
detention/mitigation facility in, over, and across the tract of land for the purpose of making additions
to, improvements on, and repairs to said detention facility or an part thereof . . .@ (emphasis added).
  It had a license to use the Brownlow=s property only for the purpose stated, not a license to take a
valuable commodity and appropriate it to its own uses elsewhere.  As such, the State=s sovereign
immunity is waived.

Accordingly, the judgment of the trial court is reversed and this case is remanded to the trial court for
a trial on the merits.

/s/        Frank C. Price

Senior Justice

Judgment rendered and Opinion filed February 5, 2008.

Panel consists of Chief Justice Hedges, Justice Anderson, and Senior Justice Price.*


[1]           The Agreed Judgment was accompanied by a construction plan sheet, initialed by
Brownlow=s attorney, showing the cut volume required to create the 87,544 cubic meter retention

[2]           We find no ambiguity in this contract, but had we found an ambiguity, because the State
provided the map (exhibit A, attached to the contract and incorporated by reference) upon which it
relies for the contention that the removal of 87, 544 was implicit (impliedly from the premises), the
ambiguity would be construed against it.

[3]           It should also be noted that the permanent easement discussed in LaGrange was not
subject to an explicit contract, the Agreed Judgment, as in the case before us.

[4]           The State, no novice to construction projects, knows the value of dirt.  It is also quite likely,
though this case has not progressed to the point of determining the value of the dirt removed, that it
exceeds the $55,000.00 paid the Brownlows for the permanent easement.

*           Senior Justice Frank C. Price sitting by assignment.
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