law-inverse-condemnation claim | condemnation suit | eminent domain
EMINENT DOMAIN TAKING OF PRIVATE PROPERTY FOR PUBLIC USE -
The Texas Constitution provides that “[n]o 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. Similarly, the Fifth Amendment’s Just Compensation Clause provides that “private property
[shall not] be taken for public use without just compensation.” U.S. Const. amend. V. The Just Compensation
Clause applies to the states by operation of the Fourteenth Amendment. Mayhew v. Town of Sunnyvale, 964 S.
W.2d 922, 933 (Tex. 1998).
Takings are classified as either physical or regulatory. Id. A physical taking is an unwarranted physical
appropriation or invasion of the property. See id. A compensable regulatory taking can occur when a
governmental agency imposes restrictions that either deny a property owner all economically viable use of his
property or unreasonably interferes with the owner’s right to use and enjoy the property. Footnote Id. at 935;
Taub v. City of Deer Park, 882 S.W.2d 824, 826 (Tex. 1994).
“Inverse condemnation occurs when (1) a property owner seeks (2) compensation for (3) property taken for
public use (4) without process or a proper condemnation proceeding.” Villarreal v. Harris County, 226 S.W.3d
537, 541 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see City of Abilene v. Burk Royalty Co., 470 S.W.2d
643, 646 (Tex. 1971). To state a cause of action for inverse condemnation under the Texas constitution, a
plaintiff must allege (1) an intentional governmental act, (2) that resulted in his property being taken, damaged,
or destroyed, (3) for public use. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.
2001). City of Houston v. Norcini (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Higley)
(unconstitutional taking - flood control ordinance, ripeness issue, denial of plea to the jurisdiction affirmed)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Laura Carter Higley
Before Justices Jennings, Higley and Sharp
01-09-00426-CV The City Of Houston v. Bruce A. Norcini
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Hon. Linda Storey
INVERSE CONDEMNATION - CASELAW FROM HOUSTON COURTS OF APPEALS
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).
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).
SWBT v. Harris County (Tex.App. - Houston [1st Dist.] Aug. 26, 2008)(Yates)
(inverse condemnation claim, utility easement, compensable taking, jurisdiction of Harris County county courts,
plea to the jurisdiction reversed)
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
City of Houston v. Chemam (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)(Keyes)
(governmental immunity, plea to the jurisdiction improperly denied, wrong court for inverse condemnation)
We reverse the order of the trial court denying the City’s plea to the jurisdiction. We render judgment dismissing the Chemams’
detrimental reliance, estoppel, tort, UDJA, and selective enforcement claims for lack of subject matter jurisdiction. We dismiss
the case without prejudice to the Chemams’ bringing their inverse condemnation claim in a court of appropriate jurisdiction.
EVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Hanks
01-08-01005-CV City of Houston v. Sherif Chemam and Diann Chemam
Appeal from 113th District Court of Harris County
Trial Court Judge: Hon. Patricia Hancock
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