

Opinion issued
September 10, 2010
 
 
 

In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-07-00431-CV
———————————
Brookshire
Katy Drainage District, Appellant
V.
The Lily Gardens, LLC,
Richard E. Flueckiger and Kenneth B. Luedecke, Appellees

 

 
On Appeal from the 9th District Court

Waller County, Texas

Trial Court Case No. 06-08-18415
 

 
DISSENT FROM
OPINION ON REHEARING
Because I believe the District has
produced more than a scintilla of evidence that raises a genuine issue of
material fact, I respectfully dissent. 
The word “may” as used in the
easement language contemplates future events which by their nature are
speculative.  The pictures of the bridge covering are in and of themselves
sufficient to raise a fact issue (i.e., showing that the bridge covering
includes walls on the side of the bridge that prevent people and machinery from
reaching down off of the bridge into the waterway below).  In my judgment, expert testimony is not
necessary to reach the conclusion that some future event “may” require access
to the top of the bridge/culvert by the District to make repairs and/or
improvements to the canal directly below due to circumstances that “may injure,
endanger, or interfere with the . . . 
maintenance and repair of said drainage canal” as in the language of the
easement.  
It is within the common knowledge of
all that to work on the large pipes seen in the pictures might require the use
of equipment that may need to be placed on the top of the bridge/ culvert. 
To insist the District come forth with exacting evidence to make the future
certain asks for more than the burden required by law. 
Further, to reach its conclusions, it
appears the majority must necessarily believe that the top of the bridge/ culvert
is not in the easement.  This result flows from a narrow interpretation of
the easement language which I do not believe is supported by the law as
outlined in the original opinion.  Because I would stand on the original
opinion of the court, return the case below for further consideration of the
merits of the issues presented, I respectfully dissent.
 
 
 
 
Davie L. Wilson 
Justice, Retired
 
Panel consists of Justices Alcala,
Hanks, and Wilson.[1]




[1]           The Honorable Davie L. Wilson, retired Justice, First Court
of Appeals, participating by assignment.


