Cummins v. Travis County Water Dist. No. 17, 03-04-00049-CV.
| Decision Date | 12 August 2005 |
| Docket Number | No. 03-04-00049-CV.,03-04-00049-CV. |
| Citation | 175 S.W.3d 34 |
| Parties | Donald H. CUMMINS, Betty Ann Bradfield Cummins, Thomas W. Cummins and William Bradfield Cummins, Appellants, v. TRAVIS COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 17, Appellee. |
| Court | Texas Supreme Court |
Samuel D. McDaniel and J. Woodfin Jones, Alexander Dubose Jones & Townsend, LLP, Austin, for Appellants.
Toni Hunter and Richard E. Gray, III, Gray & Becker, PC, Austin, for Appellee.
Before Justices KIDD, PATTERSON and PURYEAR.
Our opinion and judgment issued on June 3, 2005, are withdrawn, and the following opinion is substituted.
Appellants Donald H. Cummins, Betty Ann Bradfield Cummins, Thomas W. Cummins, and William Bradfield Cummins own property on a high bluff overlooking Lake Travis and abutting land owned by appellee, the Travis County Water Control and Improvement District No. 17. In 2002, the Cumminses applied to the District for a license to build a boat dock on a part of the lake subject to the District's regulation. After the District denied the license, the Cumminses sought a declaratory judgment that they have rights to use and enjoy their land as waterfront property, inclusive of the right to construct a recreational boat dock, because they are riparian or littoral owners of land along the shore of Lake Travis or, in the alternative, because they possess an easement or quasi-easement entitling them to such rights.
The Cumminses also challenged two regulations that the District had enacted to protect restricted zones around its water intake barge; the Cumminses alleged that the first regulation, which prohibits all activity within a 200-foot radius and mandates that warning signs be placed along the shoreline, constitutes an inverse condemnation of their land and that the second regulation, which prohibits recreational boating activity within a 1000-foot radius, is invalid. The District responded with a motion for summary judgment, and the trial court granted it. The Cumminses appeal, asserting that the summary judgment should be reversed because genuine issues of material fact remain. Because the District satisfied its burden to establish its entitlement to summary judgment, and no genuine issues of material fact remain, we affirm the judgment.
In Texas, water is a scarce natural resource that the State is obligated to conserve and protect for the benefit of the health, safety, and welfare of the general public. In accordance with this duty, the State has statutorily created several types of water districts with authority to regulate the uses of Texas's various bodies of water. The Travis County Water Control and Improvement District No. 17 is one such district, which has operated since 1958 as a political subdivision of the State of Texas, under the supervising authority of the Texas Commission on Environmental Quality,1 for the purpose of providing an adequate supply of safe, potable water and ensuring the fiscally sound, environmentally responsible development and management of water resources and wastewater facilities. To further these objectives, in 1960 the District installed an "intake barge" in Lake Travis, which pumps raw water through pipes to the District's treatment facility, where the raw water is treated and made suitable for drinking.
Nearly two decades after the District was established, the Cumminses acquired title to the property immediately north of the District's land, when Betty Ann Bradfield Cummins inherited the property from her mother in 1975. The property had been in Mrs. Cummins's family (the Bradfields) since 1943. The Cumminses' property sits atop a steep bluff; its southern border converges with the District's northern border at the head of a small cove, and both properties overlook Lake Travis to the west. The District's intake barge is located in the waters of Lake Travis, approximately 110-120 feet from the shoreline of the cove.
In 1992, the Commission promulgated a substantive rule governing public water sources. 30 Tex. Admin. Code § 290.41(e)(2) (2004). The rule sets forth the actions water control and improvement districts are required to take to ensure an adequate supply of safe drinking water:
[i]ntakes shall be located and constructed in a manner which will secure raw water of the best quality available from the source. . . . (B) Raw water intakes shall not be located within 1,000 feet of boat launching ramps, marinas, docks, or floating fishing piers which are accessible by the public. (C) A restricted zone of 200 feet radius from the raw water intake works shall be established and all recreational activities and trespassing shall be prohibited in this area. Regulations governing this zone shall be in the city ordinances or the rules and regulations promulgated by a water district or similar regulatory agency. The restricted zone shall be designated with signs recounting these restrictions. The signs shall be maintained in plain view of the public and shall be visible from all parts of the restricted area. . . . Provisions shall be made for the strict enforcement of such ordinances or regulations.
Id. Pursuant to this rule, the District enacted its own regulations in 1998, including Regulation 6.5.3.2, which establishes a "clear zone" around the District's raw water intake barge. Reg. 6.5.3.2, Protection of Water Intakes. The regulation prohibits "[a]ll activity not related to the maintenance of the barge or intake" within 200 feet. Starting from the barge, the 200-foot radius encompasses parts of the lake, as well as the cove where the southernmost corner of the Cumminses' property abuts the northernmost corner of the District's land. The regulation also prohibits "[a]ll recreational boating activity within 1000 feet." The 1000-foot radius, also extending outward from the barge, covers more than half of the Cumminses' property and a large portion of the District's land. Finally, the District's regulation mandates that "[s]igns advising the general public of this order shall be posted along the shoreline . . . [and] should read `Restricted Zone, Potable Water Intakes Within 200 Feet, Trespassing Prohibited.'" Within a few months of adopting Regulation 6.5.3.2, the District placed an order with a sign company for signs stating in large, bold letters, "Restricted Zone: Potable Water Intakes, Trespassing Prohibited within 200 feet" and "Keep Clear: Submerged Cable and Mooring Lines Below; High Voltage."
Following the enactment of the District's regulations, the Cumminses subdivided their property into six lots. Lots 1, 4, 5, and 6 are each lakefront properties, while Lots 2 and 3 are landlocked. Because of the land's location atop a steep bluff, all six lots offer lakefront views. Lot 6 is the southernmost plot, running alongside the northern border of the District's land, and converging at the small cove about 115 feet inland from the intake barge. The entire shoreline of Lot 6 falls within the 200-foot "clear zone."
In October 1999, the Cumminses prepared a boundary agreement stating that the boundary lines between their property and the District's property were defined by "the most Southerly boundary line of Lot 6," and "the 670-foot contour line2 as the most Westerly boundary." A map of the property was attached to the agreement; the map reinforces the terms of the agreement by labeling the 670-foot contour line, which is shown running along the western border of the Cumminses' property, as the "agreed boundary line."
In 2002, the Cumminses applied to the District for a license to construct a boat dock extending from their property over the waters and submerged lands of Lake Travis, which are held by the State in trust for the public. When the District refused to grant the Cumminses' application for a license, the Cumminses sought a declaratory judgment. The Cumminses claimed that, because their chain of title conveyed waterfront property, they had littoral or riparian rights entitling them to construct a recreational boat dock on the submerged lands below the 670-foot contour line. Alternatively, they claimed to have a valid easement or quasi-easement to use and enjoy their land as lakefront property, which included the right to construct such a dock. The Cumminses additionally challenged the District's regulations, claiming that the 200-foot and warning-sign regulations constituted an inverse condemnation — a taking for which the Cumminses should be compensated — and that the 1000-foot regulation was invalid.
The District filed a Rule 166a(c) motion for summary judgment with evidence attached.3 See Tex.R. Civ. P. 166a(c). The District asserted that the Cumminses are not littoral or riparian owners and that they are not entitled to moor a boat dock on the submerged land because they do not hold title to that land, which is regulated by the District pursuant to authority delegated by the State, and because the Cumminses do not have any easements over that land. The District also supported the validity of its regulations, asserting that they do not constitute an inverse condemnation of the Cumminses' property.
The trial court granted the District's motion, denying each of the Cumminses' claims. The Cumminses appeal, urging that the summary judgment should be reversed because genuine issues of material fact remain regarding whether (1) the Cumminses have riparian or littoral rights appurtenant to their land; (2) the Cumminses have an easement or quasi-easement to use and enjoy their land as waterfront property; (3) their land has been inversely condemned by the District's 200-foot and warning-sign regulations; and (4) the 1000-foot regulation is invalid.
We review the district court's grant of summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex...
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