This is the third blog in a series about key cases in inverse condemnation. Previous blog posts discussed the meaning of the Takings Clause and negligence versus and unconstitutional taking of property. In this blog post, we’ll explore 2 aspects of inverse condemnation claims: permanent versus temporary damage and state of mind.
Permanent versus Temporary Damage
In Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Texas), L.P., 449 S.W.3d 474, 480 (Tex. 2014), the court modified the Tarrant Regional Water District v. Gragg ruling to make a distinction between temporary versus permanent damage to real property with respect to measuring damages.
In Gragg, the court had said a permanent action or consequence is a thing that will continue indefinitely or at least for a very long time. In Gilbert Wheeler, Inc., the court changed these definitions in the following way:
Property damage is considered permanent if:
- It cannot be repaired or restored; or
- Even if it can be repaired or restored, it is very likely the injury will regularly recur, such that future injury can be reasonably estimated.
On the other hand, property damage is considered temporary if
- It can be repaired or restored; and
- Any anticipated recurrence would be only occasional, irregular and not reasonably predictable so that future damages could not be estimated with reasonable certainty.
Gilbert Wheeler, Inc. involved the destruction of trees on a landowner’s property by a pipeline company that was preparing an easement area for pipeline construction. The injury was found to be “permanent” as a matter of law.
State of Mind
In inverse condemnation cases that involve flood damage, another critical question is “what was the government entity’s state of mind?” Did the government entity know (not should they have known) that flooding was likely to result from its actions?
In the City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005), the city’s revised drainage plans resulted in flooding of a farm property. A prior drainage plan had required a drainage ditch across the farm because the development would increase runoff, and the landowner’s expert testified that flooding was inevitable with the new plans.
However, three sets of engineers certified that the revised plans met the city’s codes and regulations and thus would not increase downstream flooding, and no evidence showed the city knew more than it was told by those engineers.
Only a direct action by the government, not an omission or failure to act, will support a takings claim that will lead to a ruling that the landowner be compensated.
If you feel you have an inverse condemnation claim, arguably believing a government entity knew your property would suffer damage may not be enough.This is where an attorney who is experienced in inverse condemnation claims comes in.
The Texas eminent domain lawyers at Dawson & Sodd have more than 100 years of experience in fighting for the rights of Texas landowners, including in inverse condemnation claims.
Stay tuned for the next blog in this series, which will discuss inverse condemnation and flood control.
Answers to Your Questions About Eminent Domain in Texas
Condemnation is the process by which a government entity in Texas decides to take private property for a public use.
Once a Texas property is chosen for condemnation for a public use project, one of the first steps in the eminent domain process is having the property surveyed. The government entity will start with reaching out to the landowner to request the right to enter their property for this purpose. There are no right to entry statutes in Texas eminent domain law, and a property owner can technically refuse to allow access. However, this usually won’t stop the survey or stop the condemnation process from moving forward.
In Texas, landowners have the right to negotiate their own terms when their land is being taken through eminent domain, but it is not advisable. An eminent domain attorney can help you avoid making mistakes that could result in you not getting the full value of your land.
Highlighted Inverse Condemnation Case Result
The attorneys at Dawson & Sodd focus their practice on helping landowners protect their rights in eminent domain cases, including inverse condemnation. In one inverse condemnation case, we negotiated a settlement on behalf of a sand and gravel operator/tenant who was not compensated by a pipeline company before it installed a gas pipeline on the property our client leased for an active sand and gravel operation. The settlement resulted in a net recovery for the client of $226,000 and no initial offer was made by the pipeline company.
Get Help Fighting for Your Land Rights
If your a landowner whose property has been taken, used or damaged without compensation, contact Dawson & Sodd today to schedule a free consultation and get help protecting your rights as a Texas landowner.