holding that the three jury questions required under Carpenter for partial takings cases “should be reduced to two questions: first, the market value of the part taken, considered as severed land, and second, damages to the remainder, accompanied by an instruction that such damages should be determined by considering the difference between the remainder’s pre-and post-taking value”
How later courts described this case
- holding that the three jury questions required under Carpenter for partial takings cases “should be reduced to two questions: first, the market value of the part taken, considered as severed land, and second, damages to the remainder, accompanied by an instruction that such damages should be determined by considering the difference between the remainder’s pre-and post-taking value”
- recognizing that “publicly targeting a property for condemnation, resulting in economic damage to the owner, generally does not give rise to an inverse condemnation cause of action unless there is some direct restriction on use of the property.”
- stating that an inverse condemnation or ‘taking’ action is available to compensate a property owner for a loss resulting when his property has been taken or damaged for public use without compensation or a condemnation proceeding
- explaining that this form of submission is appropriate in cases where the part taken is difficult to value as severed land and there is no evidence that the condemnation increased the remainder's value
Written by the judges who cited it.
The opinion
MAUZY, Justice,
dissenting.
July 1, 1992.
Many people talk about the clumsiness of governmental bureaucracies. Few, however, embrace it as warmly as the majority does today. Abandoning the standard of conduct traditionally applied in this and other jurisdictions, the majority gives its seal of approval to bureaucratic bungling that can cause millions of dollars in damages to Texas landowners. I dissent.
Article I, section 17 of the Texas Constitution guarantees that “[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made ...” Because of the words “damaged or destroyed,” a landowner may be entitled to compensation even in the absence of a direct physical invasion of the property. DuPuy v. City of Waco, 396 S.W.2d 103, 108 (Tex.1965). Acts short of physical invasion can amount to a compensable taking when the government unreasonably interferes with access to property or otherwise imposes restrictions that constitute an unreasonable interference with the landowner’s right to use and enjoy the property. See Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820-21 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n.r.e.), and cases cited therein. The issue in this case is whether the government’s mishandling of a condemnation proceeding may constitute an unreasonable interference with the landowner’s right to use and enjoy the property.
The condemnation process may, in some circumstances, require months or even years of deliberation. The government should not be expected to rush hastily through the acquisition of land; adequate time must be allowed for full, open consideration of all aspects of the taking, including concerns relating to the environment.
The government should, however, be expected to act reasonably. An unreasonable delay in the condemnation process unnecessarily prolongs the time during which the property’s value is affected, potentially causing significant, unjustifiable injury to the landowner. In the present case, for example, the jury determined that the government’s unreasonable delay cost West-gate $633,000 in lost profits.
Other jurisdictions would hold the government accountable for the harm caused by an unreasonable delay. See, e.g., State ex rel. Morrison v. Helm, 86 Ariz. 275 , 345 P.2d 202, 207 (1959), appeal dismissed, 362 U.S. 609 , 80 S.Ct. 960 , 4 L.Ed.2d 1009 (1960); Klopping v. Whittier, 8 Cal.3d 39 , 104 Cal.Rptr. 1, 11 , 500 P.2d 1345, 1355 (1972); Levine v. City of New Haven, 30 Conn.Supp. 13 , 294 A.2d 644, 645 (1972); Roach v. Winnetka, 366 Ill. 578 , 10 N.E.2d 356, 359 (1937); Nadler v. City of Mason City, 387 N.W.2d 587 (Iowa 1986); State v. Maynard, 565 So.2d 532, 535-36 (La.App.), rev’d. on other grounds, 572 So.2d 39 (La.1990); Standard Indus., Inc. v. Depart *459 ment of Transp., 183 Mich.App. 53 , 454 N.W.2d 417, 419 (1990); State ex rel. St. Louis v. Beck, 333 Mo. 1118 , 63 S.W.2d 814, 815 (1933); City of Sparks v. Armstrong, 103 Nev. 619 , 748 P.2d 7, 8-9 (1987); Durika v. School Dist. of Derry Township, 415 Pa. 480 , 203 A.2d 474, 475 (1964).
The majority, though, chooses to excuse the delay. Rejecting the approach that prevails elsewhere, the majority asserts that holding the government responsible for unreasonable delay would inhibit the consideration of competing interests. The reasonableness of a given delay, the majority implies, cannot be accurately determined by a jury of ordinary Texans. Allowing the jury to decide what is or is not reasonable “would so skew governmental decision-making,” at 454, that the question of reasonableness should be left solely to the government itself.
I disagree. The citizens of Texas are fully capable of appreciating the need for public debate, environmental review, and consideration of alternatives. If those tasks actually require a four-year delay in completing the condemnation process, the jury should be trusted to find such a delay reasonable. Conversely, if those tasks do not actually require a four-year delay, a jury should be allowed to determine that the government has acted unreasonably. There is no justification for shielding the process from scrutiny; under our constitution, the government remains answerable to the public even when it condemns land.
Allowing Westgate to recover for the unreasonable delay in this case would be consistent with the approach taken in cases involving restrictions of access. See City of Austin v. Avenue Corp., 704 S.W.2d 11, 13 (Tex.1986) (recovery permissible for temporary restriction that is negligently performed or unduly delayed). In either situation, the government’s unreasonable delay constitutes an unreasonable interference with the landowner’s right to use and enjoy the property.
A showing of bad faith has never been required in access cases; nor should it be required in this case. As the dissenting opinion by Justice Doggett notes, “bad faith” means more than mere negligence; it implies “an intent to injure, or some other improper motive.” at 461 (citing King v. Swanson, 291 S.W.2d 773, 775 (Tex.Civ.App.—Eastland 1956, no writ)). Thus, under a bad faith standard, the government may routinely and unreasonably delay condemnation proceedings, at landowners’ expense, without fear of being held accountable.
The problem with bureaucracy is not that bureaucrats intend to injure the public. The problem is that the government becomes so absorbed in its own needs that it forgets those of the public. That problem would be addressed by an objective reasonableness standard; but it will not be addressed by a subjective bad faith standard. 1
I would hold that the jury’s finding of an unreasonable delay fully supports the inverse condemnation award. In addition, I agree fully with the views expressed in Parts II, III and IV of Justice Doggett’s dissenting opinion, concerning the majority’s failure to remand on the bad faith issue and its retreat from broad form submission. Therefore, I dissent.
. Bad faith is, of course, a factor that may be weighed in determining whether a delay has been unreasonable. See Nadler v. City of Mason City, 387 N.W.2d at 587 .