Bennett v. Tarrant County Water Control and Imp. Dist. No. One

• Decision Date: 22 February 1995
• Docket Number: No. 2-94-045-CV,2-94-045-CV
• Citation: 894 S.W.2d 441
• Parties: Suzanne BENNETT, Mary Boothe, Neal D. Crane, LaFaun Gilley, James R. and Joan Haney, Wayne and June Haney, Ward A. Hogue, Charles and Beverly Lasiter, Roberta A. Luxon, Thomas and Mary Jane Micallef, Robert E. Peterson, Frank and Josephine Prochaska, Clifford W. and Claudia Teague, Jim and Berna Williamson, and Edwin J. and Dawn Youngblood, Appellants, v. TARRANT COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NUMBER ONE, Appellee.
• Court: Texas Court of Appeals

Page 441

894 S.W.2d 441

Suzanne BENNETT, Mary Boothe, Neal D. Crane, LaFaun Gilley James R. and Joan Haney, Wayne and June Haney, Ward A Hogue, Charles and Beverly Lasiter, Roberta A. Luxon, Thomas and Mary Jane Micallef, Robert E. Peterson, Frank and Josephine Prochaska, Clifford W. and Claudia Teague, Jim and Berna Williamson, and Edwin J. and Dawn Youngblood, Appellants, v. TARRANT COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NUMBER ONE, Appellee.

No. 2-94-045-CV.

Court of Appeals of Texas Fort Worth.

Feb. 22, 1995.

Rehearing Overruled March 21, 1995.

Blackburn & Carter and James B. Blackburn, Jr., James E. Bradley, Larry G. Dunbar, Houston, for appellants.

Pope, Hardwicke, Christie, Harrell, Schell & Kelly, L.L.P. and George F. Christie, Lee F. Christie, Fort Worth, for appellee.

Before LATTIMORE and DAY, JJ., concur.

OPINION

LATTIMORE, Justice.

Appellants ("Landowners") appeal from an order granting summary judgment in favor of Tarrant County Water Control and Improvement District Number One ("Water District").

We affirm.

This is a suit for damages to land encumbered by flowage easements owned by the Water District. The flowage easements permit the Water District to occasionally flood the Landowners' property without incurring liability. The Landowners purchased their respective tracts of land, predominantly encumbered with flowage easements, with the intent to use the tracts for residential or recreational purposes. ¹

The Landowners filed suit on June 12, 1991 against the Water District, five of the Water District's current and former board members, three title companies, and Ray M. Real Estate, alleging inverse condemnation, ² misrepresentation, fraud, breach of warranty, negligence, abandonment of the easements, and deceptive trade practices. ³ In their pleadings, the Landowners claimed that during 1989 and 1990 the Water District's use of the flowage easements rendered their land worthless for its intended purpose and diminished the market value of the property. In addition, the Landowners prayed for just compensation for the taking or damaging of real and personal property, costs, attorneys' fees, and injunctive relief. In response, the Water District denied liability under the terms of the flowage easements. The Water District also counterclaimed for declaratory judgment, seeking a determination of the validity of the easements. Subsequently, all claims against the title companies and Ray M. Real Estate were either dismissed or non-suited.

On August 23, 1993, the Water District and its board members filed respective motions for summary judgment, alleging several affirmative defenses that denied the Landowners recovery of damages as a matter of law. The Landowners filed a response to both motions. The summary judgment evidence consisted entirely of affidavits and certified copies of public records. Summary judgment was rendered in favor of the Water District and its directors, however; the Landowners appeal solely from the order granting summary judgment in favor of the Water District.

FACTUAL BACKGROUND

Construction of the Eagle Mountain Lake Dam and Reservoir was completed in the late 1920's. ⁴ Thereafter, the reservoir reached the planned conservation pool elevation depth of 649 feet above mean sea level ("m.s.l."). The dam is a multipurpose dam designed for flood control, water conservation and reclamation, and protection of fish, wildlife, and surrounding terrain. As such it is operated so as to generally maintain the several purposes in balance, recognizing that from time to time one or another of the purposes will become paramount relative to the others. Before the reservoir's closure, the Water District purchased fee simple title to lands lying above the dam rising to an elevation of 668 feet m.s.l. The Water District then leased the land between 649 to 668 feet m.s.l. to individuals who, in many instances, constructed homes or cabins on the land.

Before September 1, 1975, the Water District offered many of the previously leased tracts for sale to the general public. As the tracts were sold, the Water District reserved flowage easements in the original deeds. In return for the flowage easements, the Water District offered the tracts at a discounted value, presumably to compensate for the diminished difference in the fair market value of the land before compared to after reservation of the easements. The Landowners were informed of the prospects of flooding, which were supposedly diminished by the improvements made to the dam. According to the Landowners, these assurances encompassed non-dam source or natural flooding from the Trinity River.

Since the original public offering, floodwater has exceeded the reservoir's conservation pool level of 649 feet m.s.l. only four times: in 1974, 1981, 1989, and 1990. The 1989 and 1990 floods are the occurrences that triggered this lawsuit. In June of 1989, the Eagle Mountain Lake watershed received substantial rainfall. As a result, on June 14, 1989, Eagle Mountain Lake peaked at a flood level of 652.75 feet m.s.l. The next year, the rainfall in late April and early May of 1990 was considerably more severe. As a result, Eagle Mountain Lake reached a peak flood elevation of 657.09 feet m.s.l. on May 4, 1990. ⁵ Combined, the 1989 and 1990 floods resulted in more than twenty days in which the water level exceeded the "normal" conservation pool level. Both floods raised the water level enough to inundate the Landowners' property, including several houses. Neither flood exceeded the scope of the flowage easements.

CONTENTIONS OF THE PARTIES

In nine points of error, the Landowners contend the trial court erred in granting summary judgment in favor of the Water District because the flowage easements are invalid, or in the alternative, if valid, the Water District failed to prove any affirmative defense that bars the Landowners' inverse condemnation and negligence claims as a matter of law; and because material issues of fact exist that preclude the granting of summary judgment.

The Water District responds that it is not liable for the claims asserted by the Landowners because: (1) the flowage easements are valid; (2) the inverse condemnation claims under article I, section 17 of the Texas Constitution and the Fifth Amendment to the United States Constitution are precluded by the release of claims clause in the deeds; (3) the "taking" claim under 42 U.S.C. § 1983 is not ripe; and (4) the negligence claims are barred as a matter of law by the doctrines of governmental immunity, contributory negligence, assumption of the risk, and force majeure. The Water District further contends there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.

STANDARD OF REVIEW

The function of summary judgment practice is not to deprive a litigant of his right to trial by jury, but to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). When reviewing a summary judgment granted on general grounds, the court considers whether any theories set forth in the motion will support the summary judgment. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). Because the summary judgment order in this case does not state the specific grounds upon which it was granted, appellants must show that each of the independent arguments alleged in the motion is insufficient to support the order if they are to prevail on appeal. See Sipes v. Petry & Stewart, 812 S.W.2d 428 (Tex.App.--San Antonio 1991, no writ); McCrea v. Cubilla Condominium Corp., 685 S.W.2d 755, 757 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e).

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See TEX.R.CIV.P. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the non-movant will be accepted as true. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984); Farley v. Prudential Ins. Co., 480 S.W.2d 176, 178 (Tex.1972). Evidence that favors the movant's position will not be considered unless uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

Our initial inquiry focuses on the validity of the flowage easements since the resolution of that issue is critical to the remainder of our analysis. Thereafter, we will discuss the remaining summary judgment issues.

DEED CONSTRUCTION

In their first point of error, the Landowners contend the trial court erred in granting summary judgment in favor of the Water District because the flowage easements contained in the deeds are invalid and void as against public policy. The Landowners argue that a provision that allows for occasional flooding of their property conflicts with deed restrictions that limit land use to one single-family residence per tract. ⁶ Contrary to the Landowners' position, we find no such conflict. In reaching this conclusion, we look primarily to rules of deed construction.

1. Rules of Construction

The rules applicable to the construction of deeds also apply to the construction of easements. Jones v. Fuller, 856 S.W.2d 597, 602 (Tex.App.--Waco 1993, writ denied); Boland v. Natural Gas Pipeline Co., 816 S.W.2d 843, 844 (Tex.App.--Fort Worth 1991, no writ). In construing a deed, the primary duty of a court is to ascertain the intent of the parties by a fundamental rule of construction known as the "four corners" rule. Luckel v. White, 819 S.W.2d 459, 461 (Tex.1991); Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 524 (Tex.1982); Garrett v....