Charles Lynn Brownlow and Marlene H. Brownlow v. State

Reversed and Remanded and Opinion filed February 5, 2008

Reversed

and Remanded and Opinion filed February 5, 2008.

In The

Fourteenth Court of

Appeals

_______________

NO. 14-07-00547-CV

_______________

CHARLES LYNN BROWNLOW AND MARLENE H. BROWNLOW,

Appellants

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Cause No. 41, 086

O P I N I O N

Appellants Charles Lynn Brownlow and

Marlene H. Brownlow ( A 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 A a 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. C Houston [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 554 .

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. C Houston [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: A No 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. C Houston

[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. C Fort 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. C Houston [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 . A When 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 A what 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 A for

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 A reasonably

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 A 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 . . . @ (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 pond.

[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.