Wednesday, February 6, 2008

Landowners prevail in inverse condemnation suit over dirt

In an opinion written by retired judge Frank C. Price, a three-judge panel of the Fourteenth Court of Appeals reverses trial court's grant of the state's plea to the jurisdiction on a finding that the state was not immune to the claim brought by the landowners.

Brownlow v. State of Texas (Tex.App. - Houston [14th Dist.] Feb. 5, 2008)(Price)(government entities, inverse condemnation suit, sovereign immunity)
REVERSED AND REMANDED: PriceBefore 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)


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 "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.

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