Hubler v. City of Corpus Christi

• Decision Date: 31 March 1978
• Docket Number: No. 1240,1240
• Citation: 564 S.W.2d 816
• Parties: W. R. HUBLER, Appellant, v. CITY OF CORPUS CHRISTI, Texas, et al., Appellees.
• Court: Texas Court of Appeals

Page 816

564 S.W.2d 816

W. R. HUBLER, Appellant, v. CITY OF CORPUS CHRISTI, Texas, et al., Appellees.

No. 1240.

Court of Civil Appeals of Texas,Corpus Christi.

March 31, 1978.

Rehearing Denied April 27, 1978.

Bill Blackburn, Corpus Christi, for appellant.

Gerald L. Benadum, First Asst. City Atty., Corpus Christi, Michael E. Stork, Asst. Atty. Gen., Austin, for appellees.

OPINION

NYE, Chief Justice.

This is an inverse condemnation case under the Texas Constitution Article 1, Section 17, brought by plaintiff Hubler (appellant here) against defendants, the City of Corpus Christi (City) and the Texas State Department of Highways and Public Transportation (State). The City and State filed numerous special exceptions to plaintiff Hubler's pleadings which the trial court granted. Plaintiff, in open court, refused to amend his pleadings to meet the special exceptions sustained by the trial court. The trial court thereafter dismissed plaintiff's cause with prejudice. Plaintiff Hubler perfected his appeal to this Court. The only issues in this appeal concern the sufficiency of plaintiff's pleadings to allege a cause of action for a "taking".

In October 1967, plaintiff purchased approximately fifteen and one-half (151/2) acres of the "Flour Bluff and Encinal Farm and Garden Tract" located within the city limits of Corpus Christi, Texas. This land is fronted on its southwest boundary by a body of water known as "Cayo del Oso". Plaintiff's land includes an area of low elevation through which the surface waters of the area naturally drain into the Oso. Plaintiff's petition alleged that one and one-half acres of his land were subject to this natural drainage easement.

Plaintiff's theory of recovery is that the defendants, through their combined municipal drainage and state road construction projects, have in effect "taken" a drainage easement across plaintiff's land in excess of the natural drainage easement without paying plaintiff compensation or instituting condemnation proceedings in violation of Article 1, Section 17 of the Texas Constitution. In support of this theory of recovery the plaintiff alleged in essence: 1) that in 1961 the City promulgated a master drainage plan for the City of Corpus Christi and that in 1966, the City began to implement this master plan as it relates to his property by constructing drainage structures some three to five miles from his property; 2) that in 1972 the State completed improvements to South Padre Island Drive and that such improvements terminated one to two miles northwest of plaintiff's property; 3) that his land was subject to a natural drainage easement of one and one half acres; 4) that the defendants' completed projects had resulted in an intentional and repeated increase in the volume of surface water flowing across his land, which increase exceeded the natural drainage easement; 5) that it is "probable within the foreseeable future the City will complete its essentially unitary project" and the "State will improve South Padre Island Drive down to and past plaintiff's property"; 6) that the completion of defendants' future projects will result in a further intentional and repeated increase in the surface water flowing across plaintiff's land in excess of the natural drainage easement; 7) that the present effects of the excess drainage caused by defendants' completed projects and the anticipated effects of defendants' future projects "constitute a present taking of a drainage easement" totaling 4.5 acres less 1.5 acres which is subject to the natural drainage easement; 8) that plaintiff should be compensated $3,900 representing the market value of the easement strip taken valued at the time of trial and $100,000 representing the decrease in market value to the remainder of plaintiff's land caused by the cost of preventive measures and curative repairs; and 9) that plaintiff should be compensated $30,000 for reasonable attorney, engineering and appraisal fees incurred by the plaintiff.

The defendants, on the other hand, contended they would be liable, if at all, for only a present partial taking as damaging of plaintiff's property directly caused by defendants' projects which were completed at the time of trial. Accordingly, the defendants filed numerous special exceptions directed to plaintiff's allegations concerning the anticipated consequences of defendants' future plans. In essence, the State's special exceptions, sustained by the trial court are as follows: 1) that future contemplated projects cannot as a matter of law constitute a present taking; 2) that plaintiff failed to specify the levels at which his land was being overflowed and the description of land allegedly taken incorrectly encompassed the anticipated effects of future projects; 3) that the measure of damages plaintiff sought included the decrease in market value attributable to future contemplated projects; 4) that the correct valuation date for determining the decrease in market value of plaintiff's land was the date the State completed its project and not the date of trial as plaintiff alleged; and 5) that no State statute authorized plaintiff to recover attorney, engineer or appraisal fees. The City filed special exceptions similar to numbers 1) and 5) above. In addition, the City filed a special exception to each allegation contained in plaintiff's petition which related to an act done or caused by the City prior to November 21, 1972 (two years prior to the date plaintiff filed his original petition), on the basis that the facts so pled, if proved, would constitute only a Constitutional damaging of plaintiff's property, not a Constitutional taking, and therefore the two-year statute of limitations (Article 5526 Tex.Rev.Civ.Stat.Ann.) would bar a cause of action for damaging that occurred prior to November 21, 1972.

The trial judge sustained all of the above mentioned special exceptions. Accordingly, the paragraphs concerning future projects and the part concerning attorney, engineer and appraisal fees of plaintiff's petition were stricken and the suit was ordered abated until plaintiff amended his petition to allege specific facts concerning the effects caused by the defendants' completed projects only. Plaintiff, in open court, declined to amend and the trial judge dismissed the cause with prejudice.

Plaintiff brings forward ten points of error on appeal. The first six points of error attack the action of the trial court in sustaining defendants' special exceptions directed to plaintiff's allegations that future but uncompleted drainage project plans constitute a cause of action for a present taking (special exceptions 1-3 above). In point of error seven, the plaintiff asserts that the trial court erred in sustaining the City's special exception that plaintiff's claim is, as a matter of law, a claim for damages rather than a partial taking. In points of error eight and nine, the plaintiff attacks the trial court determination that plaintiff had pled the wrong valuation date (the date of trial), and in point of error ten plaintiff asserts that the trial court erred in sustaining the State's special exception to plaintiff's claim for reasonable attorney, engineer and appraisal fees. Our determination of the first seven points of error will dispose of the case.

When special exceptions addressed to a pleading are sustained, the party has two options available to him: 1) he may amend to meet the exception, (this he may do as a matter of right); or, 2) he may stand on his pleadings, refuse to amend and test the validity of the trial court's ruling on appeal. McCamey v. Kinnear, 484 S.W.2d 150, 152 (Tex.Civ.App. Beaumont 1972, writ ref'd n.r.e.); Harold v. Houston Yacht Club, 380 S.W.2d 184, 186 (Tex.Civ.App. Houston 1964, no writ); M. C. Winters, Inc. v. Lawless,407 S.W.2d 275, 277 (Tex.Civ.App. Dallas 1966, writ dism'd); Farris v. Nortex Oil and Gas Corp., 393 S.W.2d 684, 690 (Tex.Civ.App. Texarkana 1965, writ ref'd n.r.e.). When the effect of the trial court sustaining of the special exception is to dismiss the cause of action, the exceptions have the effect of the old general demurrer, and upon appellate review, the allegations of the plaintiff's petition must be taken as true. Hazlitt v. Provident Life & Accident Ins. Co.,, 212 S.W.2d 1012 (Tex.Civ.App. San Antonio 1948), aff'd,216 S.W.2d 805 (Tex.Sup.1949); Yarborough v. Industrial Accident Board,538 S.W.2d 19, 21 (Tex.Civ.App. Austin 1976, writ ref'd n.r.e.); Farias v. Besteiro, 453 S.W.2d 314 (Tex.Civ.App. Corpus Christi 1970, writ ref'd n.r.e.); City of Roma v. Starr County, 428 S.W.2d 851 (Tex.Civ.App. San Antonio 1968, writ ref'd n.r.e.). If we determine that the trial court properly sustained defendants' special exceptions and that there remained no cause of action stated in the remaining portion of plaintiff's petition, the trial court properly rendered a final judgment of dismissal. Townsend v. Memorial Medical Center, 529 S.W.2d 264, 267 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n.r.e.); Rutledge v. Valley Evening Monitor, 289 S.W.2d 952, 953 (Tex.Civ.App. San Antonio 1956, no writ).

The trial court is clothed with a large degree of discretion in ruling on special exceptions. Its ruling will not be disturbed on appeal in absence of a showing of abuse of discretion. Townsend v. Memorial Medical Center,supra; McKinney v. Flato Brothers, Inc., 397 S.W.2d 525, 529 (Tex.Civ.App. Corpus Christi 1965, no writ); Jones v. Alvin State Bank, 332 S.W.2d 124 (Tex.Civ.App. Eastland 1960, no writ); Weiler v. Weiler, 336 S.W.2d 454 (Tex.Civ.App. Eastland 1960, no writ); Southern Underwriters v. Hodges, 141 S.W.3d 707 (Tex.Civ.App. Waco 1940, writ ref'd).

We first consider how the courts have defined a "taking" under the Constitution in an inverse condemnation case. Condemnation is the process by which property of a private owner is taken for public use, without consent, but upon the payment of just compensation. Inverse condemnation...