Eminent Domain and Inverse Condemnation

At the heart of Texas’ inverse condemnation law is the idea that no person’s property should be taken for public use without adequate payment.

Sometimes a government taking is obvious – such as a condemnation of land to build a public highway. Other times, however, it is more insidious.

In 1990, the Tarrant Regional Water District began releasing water from a reservoir located on the Trinity River. Shortly after the release, the Gragg family ranch, located 8 miles away, suffered intense flooding. This was not a one-time problem – the release of reservoir water led to flooding several other times. The land was no longer suitable for cattle-ranching.

The Gragg family sued the Tarrant County Water District under Texas’ Private Real Property Rights Preservation Act. The case eventually ended up in the Texas Supreme Court.

After finding that there was sufficient evidence to support a link between the water release and the flooding on the Gragg’s ranch, the Court turned to applying the law. The Court said the law was based on the premise that the government should not force some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

The Court decided that a taking may be physical or regulatory. A physical taking occurs when the government physically appropriates or invades private property, or unreasonably interferes with the landowner’s right to use and enjoy it. There is, however, a huge loophole in the law that works in favor of the government. There has been no “taking” if mere negligence contributed to the property damage.

Because the flooding had occurred on several occasions, the Court decided that the District’s actions altered the property’s characteristics. The Court found that the District had inversely condemned the property by its actions. It gave the District a permanent flowage easement over the property, but awarded the Gragg family $4 million in damages. Other landowners have not fared so well under the law.

Virginia Hammerle is a Board Certified Civil Trial Attorney by the Texas Board of Legal Specialization and an Accredited Estate Planner by the National Association of Estate Planners & Councils. She can be contacted at legaltalk@hammerle.com. The information contained in this article is general information only and does not constitute legal advice. ©2013 Virginia Hammerle