INVERSE CONDEMNATION | EMINENT DOMAIN | UTILITY EASEMENT COMPENSABLE TAKING
SWBT v. Harris County (Tex.App. - Houston [1st Dist.] Aug. 26, 2008)(Yates)
(inverse condemnation claim, utility easement, equipment relocation cost as compensable taking, sovereign
immunity claim rejected, jurisdiction of Harris County county courts, order granting plea to the jurisdiction
We conclude SWBT's original petition sufficiently alleged the elements of a claim for
inverse condemnation. Accordingly, the county court could not have properly granted
Harris County's plea to the jurisdiction on grounds that SWBT failed to sufficiently plead a
claim for inverse condemnation.
REVERSED AND REMANDED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Anderson and Brown)
14-07-00401-CV Southwestern Bell Telephone, L.P v. Harris County
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judges: Jacqueline Lucci-Smith | Gary Block
O P I N I O N
This proceeding arises out of an inverse condemnation dispute. Appellant Southwestern Bell Telephone, L.P.
(SWBT) claims the county court at law erred in granting appellee Harris County's plea to the jurisdiction.
Because we conclude the county court had jurisdiction over SWBT's inverse condemnation claim, we reverse
I. Factual and Procedural Background
In 1974, SWBT purchased a ten foot wide private utility easement from a private landowner. The language in the
easement granted SWBT “a permanent easement to construct, operate, maintain, inspect, replace and remove
such underground telecommunication systems and lines, and all underground appurtenances thereto, as may be
required by [SWBT] from time to time, upon, over and under a strip of land ten (10') feet in width."
The easement also reserved to the landowner the right to use the surface, lay drainage structures across and
through the easement, and replace and remove electric lines across and through the easement, so long as such
improvements did not unreasonably interfere with SWBT's use of the easement. The rights granted SWBT under
the easement were binding on the original landowner and his successors and assigns.
In 2004, Harris County purchased the underlying property as part of a project that involved the widening of
Cutton Road. Harris County took the property “subject to all easements, restrictions and reservations of
record." The project required installing an underground drainage culvert across SWBT's easement and
converting a portion of the easement into a public right-of-way. As a result, SWBT was required to lower its
underground telecommunication lines several feet, move a manhole vault, and relocate various conduits and
cables. After SWBT provided Harris County with the estimated cost of relocating its equipment, Harris County
informed SWBT that it would not pay the relocation costs. SWBT refused to relocate its telecommunications
facilities without compensation.
On November 22, 2005, Harris County filed suit against SWBT in district court, seeking a temporary and
permanent injunction requiring SWBT to move its equipment and bear the relocation costs alone. SWBT
responded by filing an inverse condemnation suit against Harris County in the County Civil Court of Law No. 2.
SWBT claimed Harris County had taken its property in two ways: (1) by forcing SWBT to relocate its facilities at
its own expense and (2) by converting a portion of SWBT's easement into a public right-of-way. In order to avoid
delay to the project, the parties agreed that SWBT would move its lines and they would continue to litigate who
should bear the cost. On August 31, 2006, the district court entered an order abating Harris County's suit until
the county court case was resolved.
Harris County filed a plea to the jurisdiction with the county court, arguing that as a matter of law, SWBT had
failed to properly plead or prove that a taking had occurred and that sovereign immunity barred SWBT's claim.
SWBT filed a motion for summary judgment in which it argued that forcing SWBT to bear the cost of moving its
equipment constituted a compensable taking to which the doctrine of sovereign immunity did not apply.
On November 27, 2006, the county court rendered judgment in SWBT's favor and awarded SWBT $167,390.99
in damages for the cost of moving the equipment. Harris County filed a motion for new trial, which was overruled
by operation of law. However, before the county court's plenary power expired, a new presiding judge sua
sponte granted Harris County a new trial. The county court then granted Harris County's plea to the
jurisdiction. This appeal followed.
In two issues, SWBT argues that the county court erred in granting Harris County's plea to the jurisdiction and
denying its motion for summary judgment because SWBT sufficiently pleaded the elements of an inverse
condemnation claim and because, as a matter of law, Harris County's actions amount to an unconstitutional
In its plea to the jurisdiction, Harris County argued that dismissal was required because SWBT's original petition
failed to allege a cause of action for inverse condemnation. Harris County further argued that it was immune
from suit under the doctrine of sovereign immunity, the dispute had been previously joined in another suit in
district court before the instant suit was filed in county court, and the amount sought was in excess of the
maximum jurisdictional amount for non-eminent domain cases.
II. Standard of Review
Because subject matter jurisdiction presents a question of law, we review a trial court's order granting a plea to
the jurisdiction de novo. See Metro. Transit Auth. v. Burks, 79 S.W.3d 254, 256 (Tex. App.- Houston [14th Dist.]
2002, no pet.). A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action
without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554
(Tex. 2000). The purpose of a dilatory plea is not to force a plaintiff to preview its case on the merits, but to
establish a reason why the merits of its case should never be reached. Id. In deciding a plea to the jurisdiction,
a court may not weigh the merits of the claims, but must consider only the plaintiffs' pleadings and the evidence
pertinent to the jurisdictional inquiry. Id. at 554, 555. When we consider a trial court's order on a plea to the
jurisdiction, we construe the pleadings liberally and look to the pleader's intent. Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A trial court accepts the factual allegations in the petition as true,
unless the defendant pleads and proves the allegations were fraudulently made to confer jurisdiction. Fort Bend
Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 319 (Tex. App.- Houston [14th Dist.] 2002, no pet.).
In this case, the county court did not state the grounds upon which it granted Harris County's plea to the
jurisdiction. As required, SWBT has attacked all independent grounds that may support the adverse ruling. See
Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676, 681-82 (Tex. App.- Houston [1st Dist.] 2002, no pet.). We
will sustain the county court's order granting Harris County's plea if any ground alleged by Harris County is
meritorious. See Villarreal v. Harris County, 226 S.W.3d 537, 541 (Tex. App.- Houston [1st Dist.] 2006, no pet.).
County civil courts at law have exclusive jurisdiction in Harris County over eminent domain proceedings, both
statutory and inverse, regardless of the amount in controversy. Tex. Gov't Code Ann. §25.1032(c) (Vernon
A landowner may bring an inverse condemnation claim pursuant to article I, section 17, of the Texas Constitution
when his property is taken, damaged, or destroyed for, or applied to, public use without adequate
compensation. A physical taking may occur when the government physically appropriates or invades private
property or unreasonably interferes with the landowner's right to use and enjoy it. Tarrant Reg'l Water Dist. v.
Gragg, 151 S.W.3d 546, 554 (Tex. 2004). To recover on an inverse condemnation claim, a property owner must
establish that (1) the State or other governmental entity intentionally performed certain acts, (2) that resulted in
the taking, damaging, or destruction of its property, (3) for public use. Steele v. City of Houston, 603 S.W.2d
786, 790B91 (Tex. 1980). Whether particular facts are enough to constitute a taking is a question of law. Gen.
Servs. Comm'n v. Little‑Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001).
In its plea to the jurisdiction, Harris County argued the county court lacked subject matter jurisdiction to hear
SWBT's claims because SWBT's original petition failed to allege a cause of action for inverse condemnation.
Harris County asserts that it was acting within a color of right under the easement agreement and not under its
eminent domain powers, and thus SWBT could not show that Harris County had the requisite intent to establish a
taking. See State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) (holding that when government acts pursuant to
colorable contract rights, it lacks necessary intent to take under its eminent domain powers and thus retains its
immunity from suit). The easement agreement reserved to Harris County the right to improve the underlying
property “so long as such improvements do not unreasonably impair [SWBT's] use of the easement.” Harris
County maintains that the easement language allows them to require SWBT to relocate its telecommunications
lines because such relocation does not constitute an unreasonable impairment of SWBT's use of the easement.
SWBT's original petition alleges that (1) Harris County is the fee owner of an estate burdened by SWBT's private
utility easement, (2) expanding the right-of-way for Cutten Road into SWBT's private easement has transformed
the underlying land into public right-of-way and deprived SWBT of its private easement rights in that land, (3)
Harris County has forced SWBT to relocate, at its own expense, telecommunications facilities located within the
private easement, (4) these actions have substantially and unreasonably interfered with SWBT's private
easement rights and constitute a taking and damaging of SWBT's constitutionally protected property rights, and
(5) SWBT has suffered damages as a result of Harris County's unconstitutional taking in an amount estimated to
exceed $200,000, including the relocation costs and diminished value of the private easement.
This court has held that requiring a utility easement holder to relocate its equipment at its own expense amounts
to a compensable taking. See Houston Lighting & Power Co. v. State, 925 S.W.2d 312, 315 (Tex. App.- Houston
[14th Dist.] 1996, writ denied). In Houston Lighting & Power, the State refused to compensate a utility company
for the cost of relocating its electrical facilities. Id. at 313-14. This court found that because the State acquired
the underlying property subject to dedicated utility easements, the utility company had a property right in the
easements and was entitled to compensation for its relocation expenses. Id. at 315.
Other Texas cases have similarly found that where a utility company owns an easement, making a demand for
relocation of the utility's facilities constitutes a taking. A constitutional taking also occurs when a portion of a
private easement is converted into a public right-of-way. See McLennan County v. Sinclair Pipe Line Co., 323 S.
W.2d 471, 474 (Tex. Civ. App.- Waco 1959, writ ref'd n.r.e.) (holding construction of public farm-to-market road
across pipeline easement constituted a taking); Sinclair Pipe Line Co. v. State, 322 S.W.2d 58, 60B61 (Tex. Civ.
App.- Fort Worth 1959, no writ) (holding State could not require pipeline to alter pipes located within pipeline's
easement to accommodate new road right-of-way without paying compensation).
Harris County argues the above cases are distinguishable because the State did not claim it was acting pursuant
to contract rights when the taking occurred, whereas here Harris County is acting pursuant to language in the
easement agreement which allows improvements that do not “unreasonably impair SWBT's use of the
easement." In support of its argument that it was not acting under its power of eminent domain, but was acting
pursuant to colorable contract rights, Harris County relies on State v. Holland, 221 S.W.3d at 643. In Holland, a
patent holder alleged that the State's use of his patented process, without payment of royalties, constituted an
unconstitutional taking of his property. Id. at 641. After finding that the State presented uncontroverted
evidence that the inventor had voluntarily provided the patented product and services, and that the State had
accepted the product and services according to a contract between the State and Holland's company, the Texas
Supreme Court held the State was acting pursuant to contract and lacked the requisite intent to take Holland's
patented process. Id. at 644.
Unlike Holland, SWBT did not contract with Harris County to voluntarily give up a portion of its easement or move
its equipment, nor did SWBT contract to render services to Harris County. The easement language gave Harris
County the right to take actions that “do not unreasonably impair [SWBT's] use of the easement."
Under the auspices of this language, Harris County required SWBT to relocate a manhole vault, conduits, cables,
and telecommunications facilities within the easement, relocate some facilities entirely outside the easement, and
lower remaining lines that are located in the new right-of-way several feet, thereby causing SWBT to incur at
least $200,000 in damages.
Although Harris County asserts that their actions do not constitute a taking, a private landowner would not be
able to force SWBT to relocate its equipment, give up a portion of its easement to public right-of-way, and incur
up to $200,000 in damages based on the “unreasonably impair" language in the easement.
Only a government entity with condemning powers could force a private utility company to relocate equipment
and relinquish part of its easement to public right-of-way, and under Texas case law, these actions constitute a
taking. See Houston Lighting & Power Co., 925 S.W.2d at 315; Magnolia Pipe Line Co. v. City of Tyler, 348 S.W.
2d 537, 539, 543 (Tex. Civ. App.- Texarkana 1961, writ ref'd); McLennan County, 323 S.W.2d at 473B74; Sinclair
Pipe Line Co., 322 S.W.2d at 60-61. Accordingly, we find Harris County's argument that it was acting pursuant to
colorable contract rights unpersuasive.
SWBT's original petition alleged that Harris County required SWBT to relocate its facilities and converted a
portion of the easement into a public right-of-way and that these actions were taken for the purpose of
completing a public road project.
We conclude SWBT's original petition sufficiently alleged the elements of a claim for inverse condemnation.
Accordingly, the county court could not have properly granted Harris County's plea to the jurisdiction on grounds
that SWBT failed to sufficiently plead a claim for inverse condemnation.
Harris County also argued in its plea to the jurisdiction that the county court at law lacked jurisdiction because
the dispute was previously joined in another suit in district court. After SWBT refused to relocate its equipment,
Harris County sued SWBT in district court. One month later, SWBT filed the inverse condemnation claim in the
county court of law that is the basis of the instant lawsuit. We have already concluded SWBT's original petition
pleaded a cause of action for an inverse condemnation claim, giving the county court at law exclusive jurisdiction
over the case. See Tex. Gov't Code Ann. § 25.1032(c). Moreover, the parties agreed to an abatement of the
district court action until the county court proceeding was resolved. The district court thus acted appropriately in
deferring to the county court at law's jurisdiction over the dispute. See Taub v. Aquila Sw. Pipeline Corp., 93 S.W.
3d 451, 458 n.10 (Tex. App.- Houston [14th Dist.] 2002, no pet.) (stating that if suit between condemnor and
property owner is pending in district court while eminent domain suit is pending in county court at law, condemnor
may move to abate claims in district court until resolution of eminent domain case in county court). Accordingly,
this argument is not a valid basis for granting Harris County's plea to the jurisdiction.
Finally, Harris County claimed the county court lacked jurisdiction because Harris County was immune from suit
under the doctrine of sovereign immunity and because the amount sought was in excess of the maximum
jurisdictional amount for non-eminent domain cases. Sovereign immunity bars a breach of contract claim, but it
does not shield a governmental entity from a takings clause action for compensation under article I, section 17,
of the Texas Constitution. Little-Tex Insulation Co., 39 S.W.3d at 598. We have already concluded SWBT's
petition sufficiently alleged a cause of action for a taking under article I, section 17, of the Texas Constitution,
and therefore SWBT's claim was not barred by sovereign immunity. Moreover, because county courts at law
have exclusive jurisdiction in Harris County over eminent domain proceedings, regardless of the amount in
controversy, Harris County's argument that the amount in controversy was in excess of the county court's
jurisdictional amount is without merit. See Tex. Gov't Code Ann. § 25.1032(c).
We find that none of the grounds set forth in Harris County's plea to the jurisdiction provide an independent
ground for affirming the county court's judgment. We sustain SWBT's first issue.
In its second issue, SWBT argues that this court should render judgment in SWBT's favor. SWBT correctly
states that when presented with cross-motions for summary judgment ruled on below, an appellate court may
render the decision the trial court should have rendered. See Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.
1988) (citing Tobin v. Garcia, 316 S.W.2d 396 (Tex. 1958)). SWBT filed a motion for summary judgment; Harris
County filed a plea to the jurisdiction. Thus SWBT's argument necessarily asks that we treat Harris County's
plea to the jurisdiction as a motion for summary judgment. However, a “plea to the jurisdiction is not a surrogate
for a summary judgment." City of Celina v. Dynavest Joint Venture, 253 S.W.3d 399, 404 (Tex. App.- Austin Apr.
24, 2008, no pet.).
In reviewing a plea to the jurisdiction, we cannot examine the merits of the case or the issues raised in a motion
for summary judgment but must consider only the plaintiffs' pleadings and evidence pertinent to the jurisdictional
inquiry. See Bland Indep. Sch. Dist., 34 S.W.3d at 555; City of Houston v. Rushing, 7 S.W.3d 909, 913 (Tex. App.
- Houston [1st Dist.] 1999, pet. denied) (explaining that “[a] motion for summary judgment concerns the merits of
a lawsuit" whereas “a plea to the jurisdiction concerns whether the pleadings state a cause of action that confers
jurisdiction on the trial court"). Accordingly, we must limit our decision to the jurisdictional arguments raised in
Harris County's plea. We cannot address the issues raised by SWBT's summary judgment motion. See Tomball
Hosp. Auth. v. Harris County Hosp. Dist., 178 S.W.3d 244, 248-49 (Tex. App.- Houston [14th Dist.] 2005, pet.
granted) (stating that because appeal arose out of grant of plea to jurisdiction and trial court did not rule on
summary judgment motion, appellate court was limited to jurisdictional issues raised in plea and could not
address issues raised in motion). We overrule SWBT's second issue.
We reverse the judgment of the county court and remand this case for further proceedings consistent with this
/s/ Leslie B. Yates
Judgment rendered and Opinion filed August 26, 2008.
Panel consists of Justices Yates, Anderson, and Brown.
 Although the record reflects that the new judge granted Harris County's motion for new trial on February 23,
2007, that motion had already been overruled by operation of law on February 12, 2007. Tex. R. Civ. P. 329b(c).
 See Harris County Toll Rd. Auth. v. Sw. Bell Tel., L.P., No. 01‑05‑00668‑CV, ___ S.W.3d ___, 2006 WL
2641204, at *14 (Tex. App.- Houston [1st Dist.] 2006, pet. granted) (“Thus, if a utility company acquires an
easement over private land and is later asked to move its lines from the easement to accommodate road
construction once the private land is annexed into a city, the city must reimburse the utility for its relocation costs
under article I, section 17 of the Texas Constitution."); Magnolia Pipe Line Co. v. City of Tyler, 348 S.W.2d 537,
539, 543 (Tex. Civ. App.-Texarkana 1961, writ ref'd) (holding that requiring pipeline to lower pipes located within
pipeline's easement was a compensable taking); McLennan County v. Sinclair Pipe Line Co., 323 S.W.2d 471,
473-74 (Tex. Civ. App.-Waco 1959, writ ref'd n.r.e.) (same); Sinclair Pipe Line Co. v. State, 322 S.W.2d 58, 60-
61 (Tex. Civ. App.- Fort Worth 1959, no writ) (holding State invaded private pipeline easement by requiring
pipeline to move its pipe to accommodate State's road construction); see also CenterPoint Energy Houston Elec.
LLC v. Harris County Toll Rd. Auth., 436 F.3d 541, 543 n.3 (5th Cir. 2006) (noting that general rule that utilities
can be required to relocate from public right-of-way at their own expense is altered when utility holds an
ownership interest, such as an easement).