Daily Development for Tuesday, September 2, 2008
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

EMINENT DOMAIN; EASEMENTS; SCOPE OF TAKING: Where a condemnation authority takes an easement to construct a water diversion facility, it does not acquire the ownership of the dirt that it excavates to build that facility, and therefore is liable additionally for taking the value of that dirt and using it as fill in another construction project.

Brownlow v. Texas, 251 S.W. 3d 756 (Tex. App. 2008) 

The State highway authority (“State”) sought to condemn Brownlow’s property to construct a water detention facility that was part of the State’s highway widening project.  Although it originally applied for a fee simple condemnation, it did not complete the lawsuit, but rather entered into a “agreed judgment” stipulating that the State took “a permanent easement in the property.”

State proceeded to remove 87,455 cubic meters of dirt and used it in another section of the highway widening project.   Brownlows brought suit contending that the excavated soil was not part of the easement condemnation.  The appeals court here agreed, reversing the judgment below.  By taking the dirt, State had engaged in an inverse condemnation and was liable for the value.

The court found it necessary to deal with a 1913 precedent that apparently had found the State not liable for excavation of dirt in the development of an easement.  The court commented that that case might remain good law “[i]nsofar as the State comes into incidental possession of soil while grading a highway.”   But it overruled the case insofar as it suggested that the State was authorized to remove thousands of cubic meters of dirt and use it for a purpose unrelated to the detention facility.  It appears that the court is holding that the court can dig out the dirt, but cannot reuse it. 

Comment 1: The State argued, of course, that the nature of the detention facility was evident to the Brownlows, and that they should have expected that dirt would be removed.  Although the decision is not crystal clear, it appears that the court’s real objection is not that the dirt was removed, but that it was reused. 

Comment 2:  Would the State have avoided liability if it had tendered the dirt to the Brownlows?  Likely so, because, as the court makes clear, the dirt had a market value and likely the Brownlows could have realized upon that value. 

What if condemning authority removes brush or timber or dirt in the course of excavation and just trucks it away and dumps it somewhere else?  The editor assumes that this is not a taking, so long as the material is made reasonably available to the condemned parties if they want it.

Comment 3: Although this case arises in the context of the a public road development easement, is there really any reason to believe that it would not also be relevant to the identification of the relative rights of the parties in the transfer of a private easement?  The editor thinks that it is relevant, and that’s one more thing that parties drafting an easement ought to be thinking about.  As the editor has often commented, easements generally are undernegotiated and underdrafted.  If there hasn’t been a case like this as yet involving a private easement, we’re likely to see one at some point. 

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