[Appellate Update] To sue for takings for breach of easement, landowner must show breach of a condition subsequent, not merely breach of a covenant says Fifth Court of Appeals.

City of Celina v. Stambaugh, 05-13-00480-CV (Tex. App. – Dallas, October 22, 2013).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a takings case which the Fifth Court of appeals reversed and dismissed.

TThe City and landowners entered into an easement agreement (to extend sewer mains for new High School) in which landowners granted the City an easement in exchange for a waiver of sewer connection fees for the landowners. The easements listed “further consideration” as an agreement to return the top soil removed during construction.  Stanbaugh (properly owners) alleges the city did not replace the original top soil and backfilled with inferior soil instead. They sued for inverse condemnation but the City asserted they had no takings claim because they voluntarily granted the easement and their complaint was merely a complaint for breach of contract for which no waiver of immunity existed.

The Dallas Court of Appeals held that to establish a takings claim, the claimant must show the city intentionally performed actions that resulted in a taking, damaging, or destroying of property for public use without the owner’s consent. The face of the landowners’ petitions establishes they voluntarily granted (consented) to the easement. Landowners “have wholly failed to direct this court to any language whatsoever in the Easement Agreement establishing the top soil provision was intended to operate as a condition subsequent instead of a covenant.” Because the landowners’ takings claim was premised on their assertion that breach of a condition subsequent voided the easement (i.e. consent never legally given), but the top soil issue was not such a condition, the trial court erred in denying the City’s plea to the jurisdiction.  Order reversed and case dismissed.

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