Redburn v Garrett et al

Filing 24

OPINION on Partial Judgment terminating 14 , 16 . The city's request for a civil penalty is denied. A permanent injunction against Redburn from blocking the storm drain will be granted. (Signed by Judge Lynn N. Hughes) Parties notified. (ghassan, 4)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS States District Court
United
Southern District of Texas

ENTERED
April 07, 2016

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Keith Redburn,
Plaintiff,

'Versus
Charmelle Garrett, et al.,

David J. Bradley, Clerk

Civil Action V'15'32

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Defendants.

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Opinion on Partial Judgment
1.

Introduction.
A landowner sues a city for taking his land without compensation or due

process because the city's storm sewer empties into a ravine on his land. The city
moves for judgment saying it has an implied easement to the ravine because it has been
draining storm water there since the 1930sThe landowner raises a question of fact
about whether the city has increased the volume of discharge. The landowner's claim
survives.

2.

Background.
Victoria, Texas, is a city on the east bank of the Guadalupe River. In mid 2004,

Keith Redburn bought five and one,half acres in Victoria. It is divided into two tracts
that meet at a ravine. At the east end, a city,owned storm sewer spills into the ravine.
Water flows through the ravine before leaving the property through another city culvert
under a road, eventually draining into the river. The ravine was once natural.
In 1932, the city installed the storm sewer to drain the streets to the west. At
that time, D.H. Bramann owned the tract south of the ravine, and Adolph Maeker
owned the tract north of it. In 1939, Bramann deeded a small parcel ofland to the city,
where it built the discharge culvert. In 1941, Bramann bought the second track from
Maeker, giving him the entire plot now owned by Redburn. In early 1941, the city
granted Bramann's petition to build a fence across its tract above the inlet culvert to
enclose his land.

3.

Redburn's Complaints.
On August

2.1, 2.006,

Redburn wrote the city complaining of increased water

flow that was eroding his land. Receiving no response, Redburn sent more letters.
Eventually he plugged the drain pipe with concrete. In 2.0II, Redburn sued (a) the city;
(b) Charmelle Garrett, the city manager; and (c ) Lynn Short, the director of public
works, in the 37ih District in Victoria County. Redburn seeks a declaratory judgment
and injunction on the theories that the city: (a) violated the Texas Water Code; (b)
trespassed; (c) damaged his property; (d) created a public nuisance; and (e) created a
private nuisance.
The city cross-claimed for an order for Redburn to remove the plug and to
recognize its easement for the drainage into the ravine.
That court dismissed Redburn's claims against Garrett, Short, and trespass by
the city because Garrett, Short, and the city were immune from suit. The only claim not
barred by immunity was Redburn's claim for a declaratory judgment that the city does
not have an easement over his property because the city had waived its immunity
through its cross claims.
On remand to the trial court, Redburn filed a second amended petition adding
a federal claim: that the city took his property without just compensation. The city
removed.
Redburn now claims: (a) trespass; (b) taking; and (c) property damagefrom an
overflow of water that the city diverted to his property; violating a state law' . The city
claims that (a) it has an easement to Redburn's property and (b) Redburn retarded the
flow of storm sewage by plugging the culvert; a violation of a city ordinance".

4.

Limitations.
Redburn says that abnormal levels of water is flowing through his land because

of a new drainage pipe that the city connected to the old drainage field. Water has
flowed over his land since

1932..

The city says that he brought his claims after the time

limitation.

'Tex. Water Code §

II.086

(a).

2Tex. Local Gov't Code § 54-°17.

The limitations period starts to run when the injury is complete, the plaintiff
knows about the injury, and knows its cause. Redburn claims two different types of
injuries, the flow of water on to his land, trespass; and the erosion the water causes, a
government taking.

A.

Trespass.

Damage to property is a trespass. The Texas statue oflimitations for a trespass
is two years. 3 Redburn wrote to the city to complain about the water on August

21,

2006. The limitations expired, at the latest, in 2008. Redburn did not sue until 2011.

His trespass claim will be dismissed as untimely.

B.

Taking.

Redburn says the city increased water flowing through the culvert, eroding his
land. F ederallaw authorizes some actions that stem from violations of constitutional
rights. 4 State law determines how long a person has to sue. s
In Texas, a landowner has ten years to sue when the government takes his land
and does not compensate him. When the land is taken gradually, as with erosion, the
limitations period begins when the extent of the damage is reasonably foreseeable.
The limitations period does not restart every time ownership transfers. Here,
the limitations period began when Redburn - or his predecessor in title - reasonably
should have foreseen that increased water flow would cause more erosion.
Redburn sued on April 14, 2011. He can only recover for erosion that was
reasonably foreseeable after April 14, 2001.

5.

Increased Water Flow.
Redburn says that when the city expanded its drainage system, it took his land

for public purposes by causing more water to flow through and erode his land. Redburn

3Tex. Civl. Prac. [9-Rem. Code § 16.003.

SOwens

'V.

Okure, 488

U.s. 235, 239 (1989).

must show that: the government did something; that caused more of his land to erode;
and for the public's benefit. 6
An expropriate taking may increase over time. If the city takes part of Redburn' s
land, but later it expands its initial use, it must compensate for the additional
diminution in Redburn's land value.
The city admits that it now uses Redburn's land as the final stage in part of its
drainage system. The drainage empties onto the land and flows through a ravine until
it ends in the Guadalupe River. The city says that Redburn's predecessor in title
allowed the city to use the land for drainage.
The ravine on Redburn's land has been used by the city to drain storm water
since the I930S. Redburn bought the land in 2004Redburn says that the city had expanded the drainage system that empties onto
his land from 2002 to 2007.
The city says that it has not added any pipes to the drainage system since 2000.
The city has records of public works projects and plats of its drainage system, but it has
not produced those documents.
Redburn raises a fact issue that is determinative of the resolution of this case.
The city's motion for judgment will be denied without prejudice.

6.

Res Judicata.
Redburn is barred from relitigating his claims under the Texas Water Code

because a court with jurisdiction has already resolved this matter, and he agrees to the
dismissal of this claim.

7-

City Claims.
The city wants a civil penalty for Redburn's culvert plug. To collect a civil

penalty under Texas Local Government Code Section 54.017, the city must prove that
Redburn was notified of his infraction.
On April 7, 20II, the city notified Redburn that he had violated the ordinance.
On April 27, 20II, a court ordered Redburn to remove the concrete. Redburn
complied. By electing to only remove the plug, the City is barred from requesting any
new remedies that will manifest injustice against Redburn. While Redburn's act had the
potential to damage the public, the city does not say that it did. The court declines to

6Abilene 'V. Smithwick, 721 S.W.2d 949, (Tex. App. Eastland 1986).

fine Redburn for the obstruction and its removal, omitting a lengthy discussion of the
questionable constitutionality of arbitrary amendments by ordinary city staffers.

8.

Conclusion.
The city's request for a civil penalty is denied. A permanent injunction against

Redburn from blocking the storm drain will be granted.

Signed on April 7,

2016,

at Houston, Texas.

cSiq