Tarrant Regional Water Dist. v. Gragg, 10-98-244-CV

• Decision Date: 21 March 2001
• Docket Number: No. 10-98-244-CV,10-98-244-CV
• Citation: 43 S.W.3d 609
• Parties: (Tex.App.-Waco 2001) TARRANT REGIONAL WATER DISTRICT, Appellant v. BILLY HARDEN GRAGG, ET AL., Appellees
• Court: Texas Court of Appeals

Page 609

43 S.W.3d 609 (Tex.App.-Waco 2001)

TARRANT REGIONAL WATER DISTRICT, Appellant v. BILLY HARDEN GRAGG, ET AL., Appellees

No. 10-98-244-CV

IN THE TENTH COURT OF APPEALS of Texas, Waco.

March 21, 2001

From the 77th District Court Freestone County, Texas Trial Court # 91-141-A.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Chief Justice Davis, Justice Vance, and Justice Gray.

OPINION

VANCE, Justice.

Our opinion and judgment dated March 14, 2001 are withdrawn, and the opinion and judgment dated March 21, 2001, are substituted therefor. The only modification is footnote 14 of the Opinion.

The Tarrant Regional Water District ("District") appeals from a judgment in an inverse condemnation proceeding. The District completed construction of the Richland Chambers Reservoir ("Reservoir") in 1987. The Reservoir filled by 1989, and began operation. Appellees claim that, due to the presence and operation of the Reservoir, their ranch land was repeatedly inundated with water to the point of being unuseable for ranching. They sued the District for inverse condemnation, and obtained a verdict in excess of $10,000,000. On appeal, the District brings multiple points of error. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1949, O. L. Gragg purchased a ranch of more than 12,000 acres, partly in Anderson County and partly in Freestone County, divided by the Trinity River. Seventeen hundred or so acres are "hill land" which has never been subject to flooding by the river. The remainder is "bottomland" in the Trinity River flood plain. Appellees are the various owners of interests in that ranch. They are grouped in two ways by ownership: fee simple owners and leasehold owners.

In 1987, the District completed the Reservoir, an impoundment of approximately 1.2 million acre-feet of water. It is about eight river-miles north of the northern boundary of the ranch. It is one of two reservoirs operated by the District in the Trinity River watershed, the other being Cedar Creek Reservoir (Cedar Creek), some 35 river-miles upstream from the ranch and about 28 miles upstream from Richland Chambers Reservoir.¹

On May 1, 1991, Appellees filed suit against the District,² claiming the District had, by "its intentional and lawful actions, imposed unreasonable restrictions on [Appellees'] use or enjoyment of their land, and interfered with [their] access to their property by virtue of the increased flooding on [Appellees'] property, which is faster, more voluminous, and longer lasting, . . ." Appellees further claimed that the District's acts "have resulted in a permanent injury to their property interests and a diminution in value of [their] interests in their real property under Article I Sec. 17 of the Constitution of the State of Texas, . . ."³ The fee-simple owners claimed damages of $7.15 million and the leasehold owners claimed damages in excess of $4.2 million.

The District's answer⁴ asserted that it had caused no damage to Appellees' land, that the river had historically flooded the ranch, and that the "temporary and sporadic flooding" resulting from rain did not cause permanent damage to Appellees' land and thus, no decrease in its fair market value.

The case was tried before a jury in 1998. The court ruled that, as a matter of law, an inverse condemnation had occurred and established the "date of taking" as March 7, 1990. The court made fifty-eight findings of fact and twenty-eight conclusions of law.⁵ Damages were determined by the jury. Judgment was entered for Appellees,⁶ and the District was awarded a "permanent and perpetual flowage easement" over the entire ranch. Obviously, the District appealed.

The District asserts five issues:

1. The evidence pertains only to possible negligent acts and omissions by the District, not to an intentional "taking," and therefore there was no inverse condemnation.

2. Appellees failed to present "any evidence" that the District caused the flooding.

3. The trial court erred in failing to conduct separate trials of the "taking" issue and the damages issues, which prejudiced the District throughout the trial.

4. The injuries to the land were temporary and not a permanent "taking," and the measure of damages was cost of repair and not reduced market value.

5. The jury's damage awards cannot be sustained because there is "no evidence": (a) of the difference in the market value of the land with and without the easement, (b) separately proving the value of the bottom lands, i.e., the flooded lands, and (c) apportioning the damages caused by factors other than the District.

As we view the District's issues, numbers one, two, and four address the court's ruling that there was a "taking." Number five attacks the damages findings of the jury. And number three claims the jury should not have been present at that part of the trial in which evidence of the "taking" was presented. We will first address issue two, then issues one and four together, followed by issue five, and finally issue three.

INVERSE CONDEMNATION

Appellees' sole claim was that the District had caused an inverse condemnation of their land by its construction and operation of the Reservoir. The applicable elements and standard of review for such a claim are well settled.

The District

The District, as a water control and improvement district, is a political subdivision created under article XVI, section 59 of the Texas Constitution. Tex. Water Code Ann. § 51.011 (Vernon 2000); Bennett v. Tarrant County Water Control and Improvement District Number One, 894 S.W.2d 441 (Tex. App.--Fort Worth 1995, writ denied). It serves only governmental functions. Bennett, 894 S.W.2d at 450. One such function of the District is to provide for the control, storage, preservation, distribution, conservation, and reclamation of water, including flood water. Tex. Water Code Ann. § 51.121(b)(1), (3) (Vernon 2000). It may also control, abate, or change any shortage or harmful excess of water. Id. § 51.121(b)(5) (Vernon 2000). The District is also given authority to acquire easements considered necessary, incident, or helpful to accomplish its purpose. Id. §§ 51.122, 51.123(b), (c) (Vernon 2000). It is undisputed, however, that it never acquired an easement right in the ranch that would authorize it to flood the property.

Texas Constitution

The shield of sovereign immunity does not preclude recovery under "inverse condemnation." See State v. Biggar, 848 S.W.2d 291, 294-95 (Tex. App.--Austin 1993), aff'd, 873 S.W.2d 11 (Tex. 1994). Article I, section 17 of the Texas Constitution provides in part that no person's property is to be taken for or applied to public use without adequate compensation being made, unless by the consent of such person.⁷ Bennett, 894 S.W.2d at 448; Tex. Const. art. I, § 17. An inverse condemnation occurs when property is taken for public use without process or without proper condemnation proceedings, and the property owner attempts to recover compensation therefor. Allen v. City of Texas City, 775 S.W.2d 863, 864 (Tex. App.--Houston [1st Dist.] 1989, writ denied). To recover under the theory of inverse condemnation, the property owner must establish: 1) an intentional act of a governmental entity; 2) accomplished for a public purpose; 3) that damages or takes property from a private citizen. Domel v. City of Georgetown, 6 S.W.3d 349, 357 (Tex. App.--Austin 1999, no pet.) (citing Steele v. City of Houston, 603 S.W.2d 786, 788-92 (Tex. 1980)).⁸

Standard of Review

The District and Appellees agree that whether a "taking" has occurred, i.e., whether there was an inverse condemnation, is a question of law. Id.; see also DuPuy v. City of Waco, 396 S.W.2d 103, 110 (Tex. 1965). Conclusions of law are reviewed de novo as legal questions. See Kirkwood v. City of Corsicana, 871 S.W.2d 544, 546 (Tex. App.--Waco 1994, no writ). Thus, we will review the trial court's determination that an inverse condemnation occurred de novo, that is, "without deference to the lower court's conclusion." See State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996).

DID THE DISTRICT CAUSE THE FLOODING?

Before addressing the District's issues about whether the evidence proved a "taking" or only negligence, we review issue two in the District's brief: "Even if Plaintiffs had a legitimate taking claim, rather than a negligence claim, they failed to adduce any evidence that the District caused the flooding on their ranch that gave rise to that claim." This is an attack on the court's findings of causation supporting its ruling that a "taking" had occurred, because without causation, there is no "taking." The District asserts that the evidence is legally insufficient to establish that the District caused the flood conditions on Appellees' property, and therefore the trial court's findings of fact and conclusions of law are incorrect.⁹ Specifically, the District attacks the reliability of the opinions of Appellees' experts offered to prove causation, asserting the opinions were based on inadequate data and flawed methodology, and also attacks the adequacy of the testimony of Appellees' lay witnesses to prove causation.

To determine whether the evidence is legally sufficient, we consider the evidence "in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party's favor." We will find the evidence legally insufficient if: (1) there is a complete absence of evidence for the finding, (2) there is evidence to support the finding, but rules of law or evidence bar the court from giving any weight to the evidence, (3) there is no more than a mere scintilla of evidence to support the finding, or (4) the evidence conclusively establishes the opposite of the finding. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of...