Redburn v Garrett et al
OPINION on Judgment terminating 55 , 58 . The city of Victoria has an implied drainage easement across Keith Redburn's property; he will take nothing. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
United States District Court
Southern District of Texas
Charmelle Garrett, et al.,
March 10, 2017
David J. Bradley, Clerk
Civil Action V-1S-32
Opinion on Judgment
A landowner sues a city for using his property as a surface route for storm water
drainage. The city claims an easement. The landowner says his tide does not include
it. He argues that if the city has an easement, it has (a) not accommodated his use of the
surface, (b) exceeded the scope of the original easement, and (c) created a nuisance. The
city has an easement; the landowner will take nothing.
In 2004, Keith Redburn bought five and one-half acres in Victoria, Texas, a city
on the east bank of the Guadalupe River. The property was divided into two tracts that
meet at a ravine. At the east end, since 1932 a city-owned storm sewer spills into the
ravine. Water flows along the ravine before leaving the property through another city
culvert under another road, eventually to drain into the river. The ravine and the pavedover ends were once a natural drain for rain water.
In 1932, the city installed the storm sewer to drain the streets to the west. At
that time, D.E. Bramann owned the tract south of the ravine, and Adolph Maeker owned
the tract north of it. In 1939, Bramann deeded a small parcel of it to the city to build the
discharge culvert. In 1941, Bramann bought the second tract from Maehr, giving him
the whole plot now owned by Redburn. In early 1941, the city granted Bramann's
petition to build a fence across the ravine so that he could fully enclose his land.
OnAugust 21, 2006, Redburn wrote the city complaining that increased water
flow was eroding his land. Receiving no response, Redburn sent more letters. Then
growing tired five years later, he plugged the drain pipe with concrete. In
Redburn sued (a) the city; (b) Charmelle Garrett, the city manager; and (c) Lynn Short,
the director of public works, in the 377th District Court of Victoria County. Redburn
sought a declaratory judgment and injunction because 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 to compel Redburn to remove the plug and to affirm its
easement for the drainage through the ravine.
The original trial court dismissed Redburn's claims. On appeal, the court (a)
affirmed the dismissal of Redburn' s claims against Garrett and Short; (b) overruled his
claims against the city for trespass and for violation of the Texas Water Code; and (c)
remanded his claim that the city does not have an easement.
In the trial court, Redburn added a federal claim. He argued that the city took
his property without just compensation. The city removed.
This court has decided that (a) the city has no civil penalty against Redburn and
(b) Redburn may not block the storm drain. Now the court will decide the competing
claims about the existence of a drainage easement.
Redburn says that the city has no easement over his property because it does
not appear on the website's list of easements. As a convenience to the public, Victoria
lists its easements on its website. City compilations of secondary data from other
records is not an element of a land title.
The city insists that it has an implied easement by (a) estoppel; (b) pre-existing
use; and (c) necessity.
A landowner may not deny the existence of an easement that was made in
reliance on representations which have been acted upon by the promisee to his
Drye v. Eagle Rock Ranch, Inc., 364 s.w.2.d 196,2.09 (Tex. 1962.).
The storm sewer was installed in 1932. After its completion, Redburn's
predecessor in interest, D.E. Bramann, petitioned the city to allow him to build a fence
across the ravine and to place tiling in it to support the fence. He publicly acknowledged
the city's right to use the ravine for drainage and took responsibility for any damage that
might be caused by that flow to his property. The city - relying on his representations
- allowed the construction of the fence.
The city has an easement by estoppel to drain across ravine Redburn's property.
He may not obstruct the flow of water in the ravine.
Redburn insists that if the city has an easement, it must accommodate his use
of the property. The right to an accommodation does not apply to a drainage easement;
it applies the use of the surface estate in conjunction with the extraction of minerals or
water from the dominant, mineral estate.
Because Redburn purchased the property subject to the drainage easement, the
city has no duty to accommodate his use.
Redburn argues that the city has exceeded the scope of the easement. Neither
party can establish the easement's original scope. The easement now is the one that
would have accomplished the original purpose within reasonably narrow limits as
determined by a fully-informed, disinterested person. That is its scope today. The ravine
represents a natural drainage course. The storm sewer that opens into the ravine only
carries the runoff from the land that was drained in 1932.
In an abundance of caution, the court compelled the city to produce data about
water flow and drainage area. Those data show that, if there is an increase in the area
drained, it has been generated by changes in land use by private land owners at the edge
of the original field. This negates willful or careless acts by the city. The additional area
is marginal- not a material change. The only change to the mechanics of the flow has
been a likely increase in the velocity of the drainage, giving the water additional force.
Without technical support from Redburn, the possibility that that represents an
Redburn may not relitigate his nuisance claim. A court with jurisdiction has
already resolved this matter finally, and it was not resurrected on appeal.
The city of Victoria has an implied drainage easement across Keith Redburn's
property; he will take nothing.
Signed on March 9, 2017, at Houston, Texas.
Lynn N. Hughes
United States DistrictJudge
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