Redburn v. City of Vict., 17-40369

• Decision Date: 01 August 2018
• Docket Number: No. 17-40369,17-40369
• Citation: 898 F.3d 486
• Parties: Keith REDBURN, Plaintiff-Appellant v. CITY OF VICTORIA, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

898 F.3d 486

Keith REDBURN, Plaintiff-Appellant

v.CITY OF VICTORIA, Defendant-Appellee

No. 17-40369

United States Court of Appeals, Fifth Circuit.

FILED August 1, 2018

Marvin Winston Jones, Cullom Brantley Jones, Sprouse Shrader Smith, P.L.L.C., Amarillo, TX, Billy Wayne Russell, Sprouse Shrader Smith, P.L.L.C., Victoria, TX, for Plaintiff-Appellant.

Scott Michael Tschirhart, Denton, Navarro, Rocha, Bernal & Zech, P.C., Austin, TX, for Defendant-Appellee.

Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

This case involves a dispute between Keith Redburn and the City of Victoria, Texas, over the City's use of Redburn's residential property to drain and filter storm-sewer runoff from a large part of the City. It is undisputed that the drainage from the City's system has created a deep chasm across Redburn's property that detracts from its value and utility. Redburn's property was outside the city limits when the drainage started, but was later annexed by the City.

Redburn initially filed this lawsuit in state court, seeking to stop the damage to his property and, after he amended his state court petition to add a federal takings claim, the City removed the case to federal court. The federal district court granted summary judgment in favor of the City, holding that it had an implied drainage easement by estoppel and no duty to accommodate Redburn's use of his own property, and, alternatively, that Redburn could not show that the City had exceeded the scope of its easement. Redburn appeals from that judgment, arguing that (1) the City does not have an easement and he is entitled to a declaratory judgment and monetary damages; and (2) even if the City has an easement, it must accommodate Redburn's use of his property by installing subsurface drain pipes as it has done elsewhere in the City; and (3) regardless, the City's current use of Redburn's land amounts to a physical taking, entitling him to compensation under the Fifth and Fourteenth Amendments. Finding that disputed factual issues exist to preclude summary judgment with regard to the first two issues, we VACATE the district court's summary judgment order and REMAND for further proceedings. We conclude that Redburn's Fifth Amendment takings claim is time-barred and AFFIRM as to that claim.

I

Beginning in the late 1800s, the City of Victoria, Texas, cut a shallow, open ditch along a street to drain storm water and sewage from the City. That excavation became known as the Phillips Ditch, so named for a resident who succeeded in a lawsuit against the City to have the ditch declared a nuisance and eliminated by the installation of underground storm sewer drainage. Initially, the City extended the drainage line westward towards the Guadalupe River, ending at the city limits abutting the property of D.H. Braman, Redburn's predecessor in interest.¹ Eventually, however, Braman's property was annexed as the City grew and extended its storm-sewer drainage system westward toward the river. By 1932, the City had moved all of its storm-sewer system underground by installing a subterranean network of sixty-inch concrete pipes. However, for unclear reasons that are subject to dispute, the City did not lay drainage pipes across the Braman property; instead, it continued to rely on an open ditch thereon to carry storm-sewer runoff across the Braman property and back into the City's underground pipe system on the other side. The City also, at some point in time, installed concrete discharge and intake culverts, located partially on the eastern and western edges of Braman's property, to aid the flow of the drainage.

In 1939, Braman executed a quitclaim deed, transferring a 0.11-acre triangular tract of land in the northeastern corner of his property to the City for one dollar. In 1941, Braman purchased a tract of land extending north of the ditch, giving him the entire five-and-a-half-acre plot of land owned by Redburn today. With this purchase, Braman's land was split into two segments by the ditch. That same year, Braman wrote a letter to the City requesting permission to erect a fence along his property lines, including over the ditch, to enclose his entire property. The City granted his request.

In May 2004, Keith Redburn purchased the property from the Braman family. The City's drainage system, and the open ditch on Braman's land, existed at the time of the purchase and remains in place today. Storm-sewer flow is carried to Redburn's property from a drainage field of over 122 acres, consisting of dozens of city blocks. Although the entirety of the City's storm-sewer system was once above ground, Redburn's property is currently the only private property on which the storm sewer flows uncontrolled and aboveground on its way to the river. The parties dispute the effects of the drainage system on the land. Redburn contends that the drainage system has resulted in erosion, uprooting trees and creating a canyon in his backyard that is fourteen feet deep and sixty to seventy feet wide. He also claims that the storm-sewer flow washes assorted debris and trash onto his property, including plastic bottles, baby diapers, disposable cups, menstrual products, and hypodermic needles. In addition to the unsanitary refuse, Redburn contends that the drainage has created various safety and health hazards by creating risks of drownings and serving as a hospitable environment for snakes, insects, vermin, and poison ivy. The City claims that it has done nothing to alter the storm-sewer system since the 1930s, has not acted upon Redburn's property since it approved the fence in 1941, and has done nothing to increase water flow since 2000.

Beginning in 2006, Redburn sent several letters to the City, claiming that the storm-sewer flow was destroying his property. Receiving no response, he plugged the drain pipe entering his property with concrete in 2011. That same year, Redburn sued the city manager and director of public works in state court, seeking a declaratory judgment and injunction against the City's use of his land. The City intervened and cross-claimed, seeking to remove the concrete plug and affirm that it had an easement to drain water across Redburn's land. Redburn was ultimately ordered to remove the concrete plug, and the state court dismissed most of his claims, leaving only the issue of whether the City had an easement over his land. Redburn filed a second amended petition adding a federal takings claim under 42 U.S.C. § 1983. The City then removed this case to federal court.

The federal district court granted in part and denied in part the City's July 2015 motion for partial summary judgment, enjoining Redburn from blocking the culvert, but ruling that the City could not penalize Redburn for the previous blockage. Redburn then moved for partial summary judgment, seeking, inter alia, a declaration that the City did not have an easement to drain across his property; or, alternatively, that the City must reasonably accommodate his use of the property or pay compensation for taking it. In a brief opinion, the district court granted summary judgment in favor of the City, concluding that the City had an easement by estoppel to drain across Redburn's property and had no duty to accommodate Redburn's use of his property, and that the city had not taken Redburn's property by exceeding the scope of its easement. Redburn timely appealed.

II

We review a district court's "grant of a motion for summary judgment de novo, applying the same standard as the district court." Howell v. Town of Ball , 827 F.3d 515, 521 (5th Cir. 2016) (quoting Moss v. BMC Software, Inc. , 610 F.3d 917, 922 (5th Cir. 2010) ). Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine dispute of material fact exists when, based on the evidence, "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-movant's evidence "is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505.

III

The City argues that it has an easement to drain across Redburn's land by estoppel, and an implied easement to drain by prior use and necessity.² We conclude, however, that the City has failed to show that it acquired any such easement and that the district court erred in granting summary judgment for the city on this basis.

A

Under Texas law, an easement by estoppel requires a representation made by the promisor to the promisee, communicated by words or actions, that the promisee believed and relied on to his detriment. See Martin v. Cockrell , 335 S.W.3d 229, 237 (Tex. App. 2010) (citing Storms v. Tuck, 579 S.W.2d 447, 452 (Tex. 1979) ). All elements must exist "at the time the promise creating the alleged easement was made." Shipp v. Stoker , 923 S.W.2d 100, 102 (Tex. App. 1996). An easement by estoppel binds successors if the promisee continues to rely on the easement. Martin , 335 S.W.3d at 237–38.

The federal district court's summary judgment order holds that the City has an implied drainage easement by estoppel, basing its conclusion on a letter written in 1941 by D.H. Braman, a previous owner of Redburn's land. In the letter, Braman asked the City to allow him to lay tiling and erect a fence over the ditch and along the perimeter of his property to encompass his newly acquired land. Braman's letter further stated that he would "assume risk as to damage caused to my property by rason [sic] thereof." The district court concluded that Braman's letter amounted to a representation that the City had a right to use the ditch for drainage purposes, that Braman assumed the risk of any damage caused by the City's drainage and water flow to his property, and that the City relied on Braman's representations to its detriment when it allowed...