                              NUMBER 13-09-00159-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


CITY OF EDINBURG AND THE TEXAS
DEPARTMENT OF TRANSPORTATION,                                                 Appellants,

                                             v.

A.P.I. PIPE & SUPPLY, LLC AND PAISANO
SERVICE COMPANY, INC.,                                                         Appellees.


                On appeal from the County Court at Law No. 2
                         of Hidalgo County, Texas.



                                    OPINION
              Before Justices Rodriguez, Benavides, and Vela
                       Opinion by Justice Benavides

       Appellants, the City of Edinburg (the “City”) and the Texas Department of

Transportation (“TxDot”), appeal the trial court’s denial of their plea to the jurisdiction in

favor of appellees, API Pipe and Supply, LLC and Paisano Service Co., Inc. (collectively

“API/Paisano”). See TEX . CIV. PRAC . & REM . CODE ANN . § 51.014(a)(8) (Vernon 2008). By

one issue, the City and TxDot argue that they have sovereign immunity from API/Paisano’s
claims. We affirm.

                                              I. BACKGROUND 1

A.      Original Suit for Condemnation

        On February 24, 2003, the City filed a petition for condemnation in County Court at

Law No. 4, Hidalgo County, Texas. The petition sought to acquire fee title to 9.869 acres

of land out of Blocks 37, 38, and 39 of the Santa Cruz Ranch Subdivision for the public

purpose of laying out, opening, constructing, reconstructing, maintaining, and operating a

certain right-of-way for U.S. Highway 281 drainage outfall ditches. In its petition, the City

set out the following:

                That the Plaintiff [the City] and the Defendant [H.B. White a/k/a
        Herschell B. White]2 have been unable to agree on the value of said real
        estate and interest therein to be condemned or the damages occasioned by
        the acquisition of such land and ask that Special Commissioners be
        appointed as provided by law to assess the damages of the Defendant.
        WHEREFORE, PREMISES CONSIDERED, Plaintiff respectively prays that
        three disinterested freeholders be appointed as Special Commissioners to
        assess the damages, [sic] of Defendant; that the said Special
        Commissioners filed [sic] their decision as required by law; that Plaintiff have
        a final judgment of condemnation vesting in the fee title to said land and the
        rights therein, all as more particularly set out above. . . .

        On April 25, 2003, a special commissioners hearing was held. White, the landowner

at that time, and the City presented evidence of the value of the property based on

appraisals prepared for each party by different appraisers. The appraiser hired by the City

valued compensation due White at $165,196, and White's appraiser valued the



        1
         This is the second tim e this Court has addressed this case, and the facts relevant to the first appeal
are again relevant to the instant appeal. See generally Tex. Dept. of Transp. v. A.P.I. Pipe & Supply, LLC,
No. 13-07-221-CV, 2008 W L 99629 (Tex. App.–Corpus Christi Jan. 10, 2008, no pet.) (m em . op., not
designated for publication).

        2
        At the tim e the City filed its petition, the property was owned by H. B. W hite a/k/a Herschell B. W hite.
API/Paisano purchased the property from W hite at a later date and, thus, were not parties to the City's
condem nation proceeding.

                                                        2
compensation due at $326,721. Each appraiser valued the compensation based on a fee

simple acquisition. The special commissioners awarded $224,249 to White as adequate

compensation for the property being condemned. They also awarded the City "all rights

described and prayed for in Plaintiff's Original Statement and Petition for Condemnation."

       On May 1, 2003, the City deposited $224,249 into the court's registry, and on May

7, 2003, White withdrew the money. Neither party objected to the special commissioners’

award. On June 3, 2003, Hidalgo County Court at Law Number 4 entered its "Judgment

of Court in Absence of Objection" (the “2003 Judgment”) adopting the special

commissioners' award that vested fee title in the City.

       On May 19, 2004, however, the county court entered a "Judgment Nunc Pro Tunc"

(the “2004 Judgment”) regarding the same 9.869 acres of property. This order stated the

following:

               [The City] is entitled to condemn, and [does] hereby have judgment
       against the above named Defendant and any other interested parties for a
       right of way easement over that real property described in Exhibit "A" and "B"
       for the purpose of opening, constructing and maintaining a permanent
       channel or drainage easement in, along, upon and across said property
       together with the right and privilege at all times of the [City], its agents,
       employees and representatives of ingress and egress to and from said
       property for the purpose of making any improvements, modifications or
       repairs which [City] deems necessary.

(Emphasis added). The 2004 Judgment also provided that it "supercedes and makes [the]

'Judgment of Court in Absence of Objection' signed on June 3, 2003[,] null and void,

without effect and vacated by this Court. This Court hereby enters the Judgment Nunc Pro

Tunc as the sole and final judgment of the case." The 2004 Judgment was filed in the real

property records on May 19, 2004.

       In September 2004, through a general warranty deed with a vendor's lien attached,

API/Paisano purchased approximately thirty-four acres from White.           This purchase

                                             3
included the 9.869 acres of land at issue in this case, subject to an easement granted to

the City as set forth in the 2004 Judgment. On June 22, 2005, the City granted an

easement over the property in question to the State of Texas, by and through TxDOT, "for

the purpose of opening, constructing and maintaining a permanent channel or drainage

easement."

       On May 16, 2006, API/Paisano filed their original petition against the City and

TxDot, claiming inverse condemnation for the taking of soil located within the drainage

channel.3 TxDOT and the City filed pleas to the jurisdiction, which the trial court denied.

B.     The First Appeal

       TxDot and the City appealed the trial court’s ruling on their plea to the jurisdiction.

See generally Tex. Dept. of Transp. v. A.P.I. Pipe & Supply, LLC, No. 13-07-221-CV, 2008

WL 99629 (Tex. App.–Corpus Christi Jan. 10, 2008, no pet.) (mem. op., not designated

for publication). TxDot and the City argued that they were immune from a suit for inverse

condemnation because API/Paisano did not have an interest in the property. TxDot and

the City reasoned that the 2004 Judgment was void because it was issued after the trial

court’s plenary power expired and because it purported to substantively change the

judgment. Id. at *4. Thus, the City and TxDot argued that the 2003 Judgment was the

effective judgment and granted the City title to the property in fee simple. Id.

       We agreed that the 2004 Judgment was void and that the 2003 Judgment granted

the City title to the property in fee simple. Id. We held, however, that fact issues precluded

a decision on whether API/Paisano had an interest in the property as good faith purchasers

for value:



       3
           API also asserted a claim for conversion.

                                                       4
       Although we have concluded that the City acquired the property at issue in
       fee simple pursuant to the 2003 Judgment, an unrecorded conveyance of
       any interest in real property is void as to a creditor or subsequent purchaser
       who gives valuable consideration and is without actual notice of the
       transaction. There is evidence in the record that only the void 2004
       Judgment was recorded and that API purchased the property from White
       subject to an easement owned by the City. There is no support in the record
       to establish that the conveyance to the City in fee simple, awarded pursuant
       to the 2003 Judgment, was recorded. Furthermore, API asserts it did not
       have actual knowledge of the 2003 Judgment. Thus, fact questions remain
       which affect the jurisdictional issue of appellant’s immunity claim. Because
       a trial court cannot grant the plea to the jurisdiction if the evidence creates
       a fact question regarding the jurisdictional issue, the trial court correctly
       denied appellants’ pleas to the jurisdiction.

Id. at *5 (citations omitted). Therefore, we affirmed the trial court’s denial of the City and

TxDot’s plea to the jurisdiction, and the case proceeded in the trial court.

C.     Subsequent Proceedings

       After the appeal, TxDot and the City filed a second plea to the jurisdiction. In the

second plea, TxDot and the City argued that the 2003 Judgment was recorded in the

official records of Hidalgo County, Texas on April 28, 2004. TxDot and the City attached

a certified copy of the 2003 Judgment, which shows it was recorded as document number

1328354 in the property records on April 28, 2004, at 2:57 p.m.—before API/Paisano’s

purchase of the property on August 30, 2004.            TxDot and the City claimed that

API/Paisano were not good faith purchasers for value without notice because the 2003

Judgment was recorded in the official property records prior to API/Paisano’s purchase of

the property and because the 2004 Judgment references the 2003 Judgment, providing

them with actual notice of the City’s interest in the property.

       The City and TxDot further claimed that API/Paisano’s suit was not just for inverse

condemnation but for trespass to try title, and they are immune from such a suit. The City

and TxDot contended that they were immune from suit for any negligence claim and that


                                              5
a party cannot acquire a property interest adverse to a governmental entity by the

application of an equitable doctrine such as estoppel, laches, adverse possession,

dereliction, or the acts or conduct of their officers or agents. Alternatively, the City and

TxDot argued that any interest API/Paisano had in the property would be subject to the

easement granted in the 2004 Judgment, which allowed the City and TxDot, as its

assignee, the right to use all materials in the easement for the purpose of constructing,

repairing, or improving the highway.

        API/Paisano filed a response to the plea and incorporated evidence attached to an

earlier-filed motion for partial summary judgment. API/Paisano argued that the 2004

Judgment was an agreed judgment that was approved by (1) counsel for the Whites; (2)

counsel for the City of Edinburg; and (3) TxDot representatives.4 API/Paisano submitted

a facsimile from Mary M. Kelly of the City of Edinburg’s Public Works Department to the

City’s attorney instructing him to execute the 2004 Judgment and to forward it to the City

after recording it “for TxDot submission, as they require original documents with field notes

& parcel plats as attached exhibits.” API/Paisano also submitted an e-mail from Pedro

Segundo with TxDot to Kelly, stating that he “spoke to Randy Ward, ROW 5 Attorney

regarding the proposed Judgment Nunc Pro Tunc for the above subject parcel. Mr. Ward

has no problem with the Draft as presented by” the City’s attorney.

            API/Paisano argued that by executing the 2004 Judgment, the City and TxDot

permitted the Whites to hold evidence of complete ownership of the property in fee simple,

and the 2004 Judgment was intended to be relied upon and was, in fact, relied upon by


        4
         API/Paisano also am ended its petition to drop its claim for conversion, leaving only the claim for
inverse condem nation.

        5
         Although not explained in the briefs or in the record, based on the context, we believe that “ROW ”
stands for “Right of W ay.”

                                                     6
third parties. Thus, API/Paisano purchased the property in good faith, and the law imputes

onto TxDot and the City “some degree of negligence, for which they ought to suffer.”

API/Paisano argued that at most, they were only subject to the easement granted in the

2004 Judgment, which did not permit TxDot to remove soil from the property without

compensation.

         On September 2, 2008, the trial court held a hearing on the plea to the jurisdiction.

On December 18, 2009, the trial court denied the plea, and this interlocutory appeal

ensued.

                                    II. STANDARD OF REVIEW

         “A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause

of action without regard to whether the claims asserted have merit.” See Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea to the jurisdiction tests the trial

court’s subject-matter jurisdiction. Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999).

         When a plea to the jurisdiction challenges the plaintiff’s pleadings, “[w]hether a

pleader has alleged facts that affirmatively demonstrate a trial court's subject[-]matter

jurisdiction is a question of law reviewed de novo.” Tex. Dept. of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The trial court must construe the pleadings

liberally in favor of the pleader. Id. If the pleadings do not allege facts sufficient to

affirmatively demonstrate jurisdiction, but the pleading defects are curable by amendment,

the issue is one of pleading sufficiency, and the pleader should be offered an opportunity

to amend. Id. at 226-27.

         If the plea to the jurisdiction challenges the existence of jurisdictional facts, however,

we review the evidence submitted by the parties. Id. at 227. “[W]hether undisputed

                                                 7
evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of

law.” Id. at 226. If evidence is submitted regarding the trial court’s subject-matter

jurisdiction that is intertwined with the merits of the case, we review that evidence to

determine if there is a fact question. Id. at 227-28. If so, the trial court must deny the plea

to the jurisdiction and submit the issue to the finder of fact. Id.

                                III. INVERSE CONDEMNATION

       The City and TxDot concede that the Texas Constitution waives sovereign immunity

for inverse condemnation claims. See Gen. Servs. Comm’n v. Little-Tex Insulation Co.,

39 S.W.3d 591, 598-99 (Tex. 2001).          They argue, however, that a proper inverse

condemnation claim necessarily requires a showing that the claimant had a compensable

interest in the property. See Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d

637, 644 (Tex. 2004). If API/Paisano do not have a compensable interest in the property,

then TxDot and the City are immune from suit under the doctrine of sovereign immunity.

See id. at 645-46; see also Little-Tex Insulation Co., 39 S.W.3d at 598-99.

       Our decision in the first appeal established that the 2004 Judgment was void, and

the 2003 Judgment vested title to the property in the City in fee simple. Tex. Dept. of

Transp., 2008 WL 99629, at *4-5.           API/Paisano assert, however, that they were

subsequent good faith purchasers for value because the 2004 Judgment, which granted

the City only an easement and not fee simple title to the property, was recorded in the

county deed records, and they relied upon the 2004 Judgment when they purchased the

property from White.

       The City and TxDot dispute that API/Paisano can be good faith purchasers for

value. First, the City and TxDot argue that API/Paisano cannot rely on equitable doctrines,



                                              8
such as the good faith purchaser for value doctrine or estoppel, to take title away from a

governmental entity. Additionally, the City and TxDot argue that API/Paisano cannot be

good faith purchasers for value because the 2003 Judgment was also recorded and

because API/Paisano had actual notice of it. Second, the City and TxDot argue that

API/Paisano’s suit is really for trespass to try title and negligence, and they have sovereign

immunity from these claims. Alternatively, TxDot and the City argue that the easement

granted in the 2004 Judgment allows them to take and keep any soil excavated from the

drainage ditches; therefore, API/Paisano do not have a compensable property interest in

the excavated soil. For the reasons that follow, we disagree.

A.     Good Faith Purchasers for Value

       Section 13.01(a) of the Texas Property Code provides:

       A conveyance of real property or an interest in real property or a mortgage
       or deed of trust is void as to a creditor or to a subsequent purchaser for a
       valuable consideration without notice unless the instrument has been
       acknowledged, sworn to, or proved and filed for record as required by law.

TEX . PROPERTY CODE ANN . § 13.01(a) (Vernon 2003). Stated otherwise, a “good faith

purchaser for value” is one who acquires real property in good faith, for valuable

consideration, and without actual or constructive knowledge of an outstanding equity or an

adverse interest or title. See id.; Colvin v. Alta Mesa Res., Inc., 920 S.W.2d 688, 691 (Tex.

App.–Houston [1st Dist.] 1996, writ denied). It is undisputed that both the 2003 and 2004

Judgments were filed in the official property records prior to API/Paisano’s purchase.

Additionally, the City and TxDot do not dispute that they agreed to the 2004 Judgment and

took steps to have it filed in the property records. The only dispute relates to the legal

effect of these actions, which is a question of law that we review de novo. See Miranda,

133 S.W.3d at 226.

                                              9
       First, the City and TxDot argue that API/Paisano could not be good faith purchasers

for value against the claim of a governmental entity because a party may not acquire a

property interest adverse to a governmental entity by the application of an equitable

doctrine, citing Odessa Tex. Sheriff’s Posse, Inc. v. Ector County, 215 S.W.3d 458 (Tex.

App.–Eastland 2006, pet. denied), and Capitol Road & Gun Club v. Lower Colo. River

Auth., 622 S.W.2d 887, 896 (Tex. App.–Austin 1981, writ ref’d n.r.e.) (op. on reh’g).

Odessa Texas Sheriff’s Posse involved the creation of a “lease by conduct,” which is where

“a lease may be created by words or other conduct expressing consent to the lessee's

possession.” 215 S.W.3d at 465. Capitol Road & Gun Club involved a claim to property

by use of the doctrines of limitations, estoppel, and acquiescence theory. 622 S.W.2d at

896.

       However, the “good faith purchaser for value” doctrine is not merely an equitable

doctrine—it is statutorily mandated, and no exception is made in the statute for

governmental entities. See TEX . PROPERTY CODE ANN . § 13.01(a). In fact, other courts

have applied the good faith purchaser for value doctrine as against a governmental entity.

See also City of Richland Hills v. Bertelsen, 724 S.W.2d 428, 430 (Tex. App.–Fort Worth

1987, no writ). Thus, we reject the City and TxDot’s argument that they cannot be made

subject to API/Paisano’s property interest as good faith purchasers for value because

governmental entities are subject to the statutorily-imposed good faith purchaser for value

doctrine.

       The question remains, however, whether API/Paisano had either constructive or

actual notice of the City and TxDot’s claim to the property in fee simple. API/Paisano does

not dispute that it had notice or actual knowledge of both the 2003 and 2004 Judgments,


                                            10
which were filed of record. The question is whether API/Paisano should have known that,

after the fact, the City and TxDot would claim that the 2004 Judgment, to which they

agreed and which they caused to be filed, was void. We hold that API/Paisano was not

required to inquire as to the effect or validity of the 2004 Judgment and was entitled to rely

on the 2004 Judgment, filed in the official property records.

       “A purchaser is charged with knowledge of the provisions and contents of recorded

instruments. Purchasers are also charged with notice of the terms of deeds which form

an essential link in their chain of ownership.” Cooksey v. Sinder, 682 S.W.2d 252, 253

(Tex. 1984) (per curiam). The converse is likewise true—a party who performs a diligent

search of the property records is entitled to rely on the recitations in those records when

purchasing property, particularly as against the party who causes the recitations to be there

in the first place. As the Texas Supreme Court explained as early as 1891:

       Protection is given to a bona fide purchaser on the ground that it would be
       unjust to deprive him of property which he has purchased from another
       holding all the evidences of right necessary under the law to show that he is
       the true owner of the thing purchased; and when a person not having the
       entire beneficial interest is permitted by those having adverse interests to
       hold the evidences of perfect right in himself prescribed by law for the
       purpose, among others, of showing who the true owner is, then the law
       imputes to those having such adverse interest some degree of negligence,
       for which they ought to suffer, rather than that loss should be imposed on a
       bona fide purchaser from one holding the evidences of complete ownership.

Patty v. Middle, 82 Tex. 586, 17 S.W. 909, 911 (Tex. 1891); see Potka v. Potka, 205

S.W.2d 51, 54 (Tex. Civ. App.–Waco 1947, writ ref’d n.r.e.) (holding that subsequent

purchaser was entitled to rely on a subsequent partition judgment that conflicted with an

earlier deed, because the adverse claimants allowed the partition judgment to be entered

without asserting their rights).

       The 2004 Judgment expressly states that it is

                                             11
       in replacement of the “Judgment of Court in Absence of Objection” signed
       on June 3, 2003 and later recorded as Document Number 1328354, Official
       Records of Hidalgo County, Texas. This Judgment Nunc Pro Tunc thereby
       supersedes and makes said “Judgment of Court in Absence of Objection”
       signed on June 3, 2003 null and void, without effect and vacated by this
       Court. This Court hereby enters this Judgment Nunc Pro Tunc as the sole
       final judgment of the case.

The 2004 Judgment was signed by the City’s attorneys. The 2004 Judgment, on its face,

expressly superseded the 2003 Judgment and contained all the requisites of a valid

judgment. See Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 675 (Tex. 1942)

(holding that a party who purchased land in good faith at from a person who acquired the

land at a foreclosure sale acquired good title to the land even though the foreclosure sale

was deemed void); Gohlson v. Peeks, 224 S.W.2d 778, 782 (Tex. Civ. App.–Eastland

1949, writ ref’d) (op. on reh’g). Nothing in the official property records would have revealed

that the 2004 Judgment was void because it was issued outside the trial court’s plenary

power, and we will not require parties to review the contents of the clerk’s file in a lawsuit

to which they are not a party and form a legal opinion about the validity of a judgment that

appears valid on its face. Cf. Martin v. Cadle Co., 133 S.W.3d 897, 905 (Tex. App.–Dallas

2004, pet. denied) (holding purchasers had notice that foreclosure was void because chain

of title put them on notice). Thus, we hold that API/Paisano was entitled to rely on the

2004 Judgment as good faith purchasers for value.

B.     Trespass to Try Title and Negligence

       TxDot and the City argue that API/Paisano’s claim is really one for trespass to try

title, not inverse condemnation, and they are immune from such a suit. Furthermore,

TxDot and the City argue that they are immune from any negligence claims asserted by

API/Paisano.


                                             12
       First, we note that nowhere in API/Paisano’s petition do they assert a claim for

negligence. In fact, the only claim raised is for inverse condemnation. API/Paisano uses

the word “negligence” only to explain their good faith purchaser for value argument—that

because TxDot and the City allowed the 2004 Judgment to be entered, the law requires

that any harm for that negligence should fall on TxDot and the City. See Patty, 17 S.W.

at 911 (“[W]hen a person not having the entire beneficial interest is permitted by those

having adverse interests to hold the evidences of perfect right in himself prescribed by law

for the purpose, among others, of showing who the true owner is, then the law imputes to

those having such adverse interest some degree of negligence, for which they ought to

suffer, rather than that loss should be imposed on a bona fide purchaser from one holding

the evidences of complete ownership.”) (emphasis added). API/Paisano’s citation of Patty

merely provides the theoretical underpinnings of the good faith purchaser for value

doctrine; it does not convert their claim into a negligence claim. See id.

       Second, TxDot and the City’s argument that this suit is one for trespass to try title

is not supported by the law. “[A] takings claim is not the functional equivalent of a trespass

to try title claim or a suit to quiet title.” Poretto v. Patterson, 251 S.W.3d 701, 708 (Tex.

App.–Houston [1st Dist.] 2007, no pet.). The remedy for an inverse condemnation claim

is just compensation for the taking, while a successful trespass to try title claim requires

immediate transfer of possession of the property. Id. “[A]lthough land ownership is

universally an underlying consideration of a takings claim, legislative consent is

unnecessary to pursue just compensation (as opposed to possession and title) because

the Texas and United States Constitutions already grant private landowners such a right.”

Id. If we were to accept TxDot and the City’s argument, no claimant could ever recover for


                                             13
inverse condemnation if the governmental entity challenged the claimant’s ownership of

the property because, according to TxDot and the City, the claimant would be barred by

the doctrine of sovereign immunity from proving ownership. City of Sunset Valley, 146

S.W.3d at 644 (“It is fundamental that, to recover under the constitutional takings clause,

one must first demonstrate an ownership interest in the property taken.”). That is a result

that simply cannot obtain.

       Accordingly, for all the foregoing reasons, we reject TxDot and the City’s argument

and overrule their issue in this regard.

C.     Scope of the Easement

       Next, the parties dispute ownership of the soil removed from the property, which is

the subject of API/Paisano’s inverse condemnation suit. The City and TxDot argue that

the easement granted in the 2004 Judgment allowed them to remove soil from the property

and to keep it for their own use; thus, API/Paisano do not have any property interest in the

excavated soil.

       API/Paisano concede that any interest they obtained as good faith purchasers for

value is necessarily subject to the easement granted in the 2004 Judgment, which

provides:

               [The City] is entitled to condemn, and [does] hereby have judgment
       against the above named Defendant and any other interested parties for a
       right of way easement over that real property described in Exhibit "A" and "B"
       for the purpose of opening, constructing and maintaining a permanent
       channel or drainage easement in, along, upon and across said property
       together with the right and privilege at all times of the [City], its agents,
       employees and representatives of ingress and egress to and from said
       property for the purpose of making any improvements, modifications or
       repairs which [City] deems necessary.

API/Paisano further concede that pursuant to the easement, TxDot and the City had the


                                            14
right to excavate the soil in question because the excavation was “reasonably necessary”

for the construction of the drainage easement. API/Paisano argue, however, that once the

soil was excavated, TxDot and the City had “no rights whatsoever with respect to the soil.”

       When considering the terms of an express easement, we apply basic principles of

contract construction and interpretation. Marcus Cable Assocs. L.P. v. Krohn, 90 S.W.3d

697, 700 (Tex. 2002). The intent expressed in an easement determines the scope of the

easement, and unless the easement’s language is ambiguous, we look solely to the terms

of the written instrument. Id. at 700-01. “[I]f a particular purpose is not provided for in [a]

grant, a use pursuing that purpose is not allowed.” Id. at 701 (citations omitted). “Nothing

passes by implication ‘except what is reasonably necessary’ to fairly enjoy the rights

expressly granted.” Id.

       An easement is merely “[‘]a liberty, privilege, or advantage in land without profit,

existing distinct from the ownership of the soil.[’]” F.J. Harrison & Co. v. Boring & Kennard,

44 Tex. 255, 1875 WL 7685, at *8 (Tex. 1875) (quoting Herman on Estoppels, sec. 517;

3 Kent's Comm., 565.).

       [A]n easement is a nonpossessory interest, though it authorizes its holder to
       use the property for a particular purpose. While establishment of an
       easement, in general terms, implies a grant of unlimited reasonable use as
       is reasonably necessary and convenient, the fee owner retains title to the
       land and all that is ordinarily considered part of that land.

Brownlow v. State, 251 S.W.3d 756, 760-61 (Tex. App.–Houston [14th Dist.] 2008, pet.

granted) (citing Marcus Cable Assocs., L.P., 90 S.W.3d at 700; Coleman v. Forister, 514

S.W.2d 899, 903 (Tex.1974); Brunson v. State, 418 S.W.2d 504, 506 (Tex. 1967)).

       In Brownlow, the Brownlows granted the State an easement to build a water

detention facility as part of the State’s highway construction project, describing the


                                              15
easement as:

       a permanent easement in the property . . . for the purpose of opening,
       constructing, and maintaining a detention/mitigation facility in, over, and
       across the tract of land for the purpose of making additions to, improvements
       on, and repairs to said detention facility or an part thereof. . . .

Id. at 759. Thereafter, the State began removing large amounts of soil and used the soil

in another section of the highway project. Id. The court held that the easement allowed

the State to excavate soil from the property but did not allow the State to take the soil and

use it for its own purposes:

       While it may be “reasonably necessary” for the [S]tate to displace the soil to
       dig the detention facility, the [S]tate provided no testimony or other evidence
       that it was reasonably necessary for it to cart off an enormous amount of soil
       to another location not owned by the Brownlows and use it for its own
       purposes. This court takes judicial note that in the marketplace today soil is
       a valuable commodity. Having bargained only for an easement, the State is
       not entitled to ownership of the extracted soil.

Id. at 762 (internal citation omitted).

       As in Brownlow, the easement here allowed the City and TxDot to excavate soil to

the extent reasonably necessary to fulfill the purpose of the easement:            “opening,

constructing and maintaining a permanent channel or drainage easement.” The easement,

however, does not grant the City and TxDot title to the soil that is removed, which remains

the property of API/Paisano. Id.

        The City and TxDot rely on City of La Grange v. Brown, 161 S.W. 8 (Tex. Civ.

App.–Austin 1913, writ ref’d), and City of San Antonio v. Mullally, 33 S.W. 256 (Tex. Civ.

App.–San Antonio 1895, no writ), arguing that when an easement is granted for highway

purposes, the easement also allows the removal of dirt or gravel from the road, and the

easement owner may use that dirt or gravel to maintain another street or highway. These

cases are distinguishable in that they deal with the removal of soil, gravel, or other like


                                             16
material from above the grade line of one part of a street or highway to another portion of

that or some other street or highway. See Mullaly, 33 S.W. at 256; La Grange, 161 S.W.

at 10. The Brownlow court recognized that in La Grange, the State came into “incidental

possession” of small amounts of soil while grading the highway—the State was not

removing large amounts of soil and keeping it without providing an explanation for why that

was reasonably necessary. Brownlow, 251 S.W.3d at 762.

        We likewise agree that the highway-grading cases are distinguishable, and we

follow Brownlow. Id. The City and TxDot have not provided any explanation for why it was

reasonably necessary for it to keep the soil it removed from the drainage ditches.

Accordingly, we hold that the easement did not authorize the City and TxDot to keep the

soil it removed from the easement, and API/Paisano have a sufficient property interest in

that soil to maintain an action for inverse condemnation. Therefore, the City and TxDot do

not have sovereign immunity, and we overrule their issue on appeal.6

                                              IV. CONCLUSION

        Having overruled the City and TxDot’s issue on appeal, we affirm the trial court’s

order denying their plea to the jurisdiction.

                                                                 _______________________________
                                                                 GINA M. BENAVIDES,
                                                                 Justice
Delivered and filed the
26th day of August, 2010.


        6
            As part of their issue, the City and TxDot argue that it m ust be presum ed that the prior owners
recovered all dam ages to the property in the prior condemnation proceeding and that because the City has
already paid for the value of the fee sim ple interest, any recovery by API/Paisano will be a “double recovery”
for the acquisition of the sam e piece of land. The City and TxDot do not explain why API/Paisano, as good
faith purchasers for value, have benefitted in any way from the paym ent that the City m ade to W hite before
the City agreed to the 2004 Judgm ent, on which API/Paisano relied when purchasing the property from W hite.
Furtherm ore, the City and TxDot do not explain how these argum ents relate to the jurisdiction of the trial court,
which is all we m ay review in this appeal. Accordingly, we decline to address them as inadequately briefed.
T EX . R. A PP . P. 38.1(i).

                                                       17
18
