Overview and Background
In the past year, the Texas Supreme Court has issued five significant opinions that could be characterized as expanding landowner rights at the expense of condemnors – from declaring that landowners have right to challenge a city’s nuisance determination de novo in condemnation proceedings, to holding that landowners have a constitutionally compensable interest in groundwater, to making it easier to challenge the common carrier status of pipeline companies – the current Court is decidedly pro-landowner.
These opinions demonstrate a major shift in the Texas Supreme Court’s treatment of takings. Since the middle of the nineteenth century until last year, the Texas Supreme Court repeatedly and uniformly endorsed the taking of private land for the public benefit. Until recently, the Court recognized the need for the State’s power of eminent domain and that the right “grows out of necessity,” and without it, “society and government could not exist.”
Imperial Irrigation Co. v. Jayne, 138 S.W. 575, 587 (Tex. 1911). In the past, the Court protected all condemnors, including private condemnors, because it recognized that delegation of the power of eminent domain to private entities such as railroads, pipelines, water, and mining companies was important to the State’s economy. See, e.g., Borden v. Trespalacios Rice & Irrigation Co., 86 S.W. 11 (1905); West v. Whitehead, 238 S.W. 976 (Tex. Civ. App.—San Antonio 1922, writ ref’d).
It is too early to know what effect the Court’s new stance will have on the Texas economy or whether it will dramatically increase litigation over takings claims.