     Case: 17-40369    Document: 00514581670    Page: 1   Date Filed: 08/01/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit


                                 No. 17-40369                       FILED
                                                               August 1, 2018
                                                               Lyle W. Cayce
KEITH REDBURN,                                                      Clerk

             Plaintiff - Appellant

v.

CITY OF VICTORIA,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Southern District of Texas


Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      This case involves a dispute between Keith Redburn and the City of
Victoria, Texas, over the City’s use of Redburn’s residential property to drain
and filter storm-sewer runoff from a large part of the City. It is undisputed
that the drainage from the City’s system has created a deep chasm across
Redburn’s property that detracts from its value and utility.              Redburn’s
property was outside the city limits when the drainage started, but was later
annexed by the City.
      Redburn initially filed this lawsuit in state court, seeking to stop the
damage to his property and, after he amended his state court petition to add a
federal takings claim, the City removed the case to federal court. The federal
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district court granted summary judgment in favor of the City, holding that it
had an implied drainage easement by estoppel and no duty to accommodate
Redburn’s use of his own property, and, alternatively, that Redburn could not
show that the City had exceeded the scope of its easement. Redburn appeals
from that judgment, arguing that (1) the City does not have an easement and
he is entitled to a declaratory judgment and monetary damages; and (2) even
if the City has an easement, it must accommodate Redburn’s use of his
property by installing subsurface drain pipes as it has done elsewhere in the
City; and (3) regardless, the City’s current use of Redburn’s land amounts to a
physical taking, entitling him to compensation under the Fifth and Fourteenth
Amendments. Finding that disputed factual issues exist to preclude summary
judgment with regard to the first two issues, we VACATE the district court’s
summary judgment order and REMAND for further proceedings. We conclude
that Redburn’s Fifth Amendment takings claim is time-barred and AFFIRM
as to that claim.

                                           I
      Beginning in the late 1800s, the City of Victoria, Texas, cut a shallow,
open ditch along a street to drain storm water and sewage from the City. That
excavation became known as the Phillips Ditch, so named for a resident who
succeeded in a lawsuit against the City to have the ditch declared a nuisance
and eliminated by the installation of underground storm sewer drainage.
Initially, the City extended the drainage line westward towards the Guadalupe
River, ending at the city limits abutting the property of D.H. Braman,
Redburn’s predecessor in interest. 1 Eventually, however, Braman’s property



      1 The parties appear to dispute whether the ditch followed the course of a natural
waterway. Redburn contends that the City’s pipe system diverted water uphill to his
property, instead of dispersing it naturally at a lower elevation. By contrast, the City

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was annexed as the City grew and extended its storm-sewer drainage system
westward toward the river. By 1932, the City had moved all of its storm-sewer
system underground by installing a subterranean network of sixty-inch
concrete pipes. However, for unclear reasons that are subject to dispute, the
City did not lay drainage pipes across the Braman property; instead, it
continued to rely on an open ditch thereon to carry storm-sewer runoff across
the Braman property and back into the City’s underground pipe system on the
other side. The City also, at some point in time, installed concrete discharge
and intake culverts, located partially on the eastern and western edges of
Braman’s property, to aid the flow of the drainage.
      In 1939, Braman executed a quitclaim deed, transferring a 0.11-acre
triangular tract of land in the northeastern corner of his property to the City
for one dollar. In 1941, Braman purchased a tract of land extending north of
the ditch, giving him the entire five-and-a-half-acre plot of land owned by
Redburn today.       With this purchase, Braman’s land was split into two
segments by the ditch. That same year, Braman wrote a letter to the City
requesting permission to erect a fence along his property lines, including over
the ditch, to enclose his entire property. The City granted his request.
      In May 2004, Keith Redburn purchased the property from the Braman
family. The City’s drainage system, and the open ditch on Braman’s land,
existed at the time of the purchase and remains in place today. Storm-sewer
flow is carried to Redburn’s property from a drainage field of over 122 acres,
consisting of dozens of city blocks. Although the entirety of the City’s storm-
sewer system was once above ground, Redburn’s property is currently the only
private property on which the storm sewer flows uncontrolled and aboveground



contends that the Phillips Ditch follows a natural flow of water that extended over the
property on its way to the river.

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on its way to the river. The parties dispute the effects of the drainage system
on the land. Redburn contends that the drainage system has resulted in
erosion, uprooting trees and creating a canyon in his backyard that is fourteen
feet deep and sixty to seventy feet wide. He also claims that the storm-sewer
flow washes assorted debris and trash onto his property, including plastic
bottles, baby diapers, disposable cups, menstrual products, and hypodermic
needles. In addition to the unsanitary refuse, Redburn contends that the
drainage has created various safety and health hazards by creating risks of
drownings and serving as a hospitable environment for snakes, insects,
vermin, and poison ivy. The City claims that it has done nothing to alter the
storm-sewer system since the 1930s, has not acted upon Redburn’s property
since it approved the fence in 1941, and has done nothing to increase water
flow since 2000.
      Beginning in 2006, Redburn sent several letters to the City, claiming
that the storm-sewer flow was destroying his property. Receiving no response,
he plugged the drain pipe entering his property with concrete in 2011. That
same year, Redburn sued the city manager and director of public works in state
court, seeking a declaratory judgment and injunction against the City’s use of
his land.   The City intervened and cross-claimed, seeking to remove the
concrete plug and affirm that it had an easement to drain water across
Redburn’s land. Redburn was ultimately ordered to remove the concrete plug,
and the state court dismissed most of his claims, leaving only the issue of
whether the City had an easement over his land. Redburn filed a second
amended petition adding a federal takings claim under 42 U.S.C. § 1983. The
City then removed this case to federal court.
      The federal district court granted in part and denied in part the City’s
July 2015 motion for partial summary judgment, enjoining Redburn from


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blocking the culvert, but ruling that the City could not penalize Redburn for
the previous blockage. Redburn then moved for partial summary judgment,
seeking, inter alia, a declaration that the City did not have an easement to
drain across his property; or, alternatively, that the City must reasonably
accommodate his use of the property or pay compensation for taking it. In a
brief opinion, the district court granted summary judgment in favor of the City,
concluding that the City had an easement by estoppel to drain across
Redburn’s property and had no duty to accommodate Redburn’s use of his
property, and that the city had not taken Redburn’s property by exceeding the
scope of its easement. Redburn timely appealed.
                                           II
      We review a district court’s “grant of a motion for summary judgment de
novo, applying the same standard as the district court.” Howell v. Town of
Ball, 827 F.3d 515, 521 (5th Cir. 2016) (quoting Moss v. BMC Software, Inc.,
610 F.3d 917, 922 (5th Cir. 2010)). Summary judgment is appropriate where
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). A genuine dispute of
material fact exists when, based on the evidence, “a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The non-movant’s evidence “is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255.
                                           III
      The City argues that it has an easement to drain across Redburn’s land
by estoppel, and an implied easement to drain by prior use and necessity. 2 We



      2 The City does not allege or contend that it has an express easement by written
instrument, or that Braman dedicated a portion of his land to the City for public drainage
purposes. See, e.g., Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 203–07 (Tex. 1962).

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conclude, however, that the City has failed to show that it acquired any such
easement and that the district court erred in granting summary judgment for
the city on this basis.
                                         A
      Under Texas law, an easement by estoppel requires a representation
made by the promisor to the promisee, communicated by words or actions, that
the promisee believed and relied on to his detriment. See Martin v. Cockrell,
335 S.W.3d 229, 237 (Tex. App. 2010) (citing Storms v. Tuck, 579 S.W.2d 447,
452 (Tex. 1979)). All elements must exist “at the time the promise creating the
alleged easement was made.” Shipp v. Stoker, 923 S.W.2d 100, 102 (Tex. App.
1996). An easement by estoppel binds successors if the promisee continues to
rely on the easement. Martin, 335 S.W.3d at 237–38.
      The federal district court’s summary judgment order holds that the City
has an implied drainage easement by estoppel, basing its conclusion on a letter
written in 1941 by D.H. Braman, a previous owner of Redburn’s land. In the
letter, Braman asked the City to allow him to lay tiling and erect a fence over
the ditch and along the perimeter of his property to encompass his newly
acquired land. Braman’s letter further stated that he would “assume risk as
to damage caused to my property by rason [sic] thereof.” The district court
concluded that Braman’s letter amounted to a representation that the City had
a right to use the ditch for drainage purposes, that Braman assumed the risk
of any damage caused by the City’s drainage and water flow to his property,
and that the City relied on Braman’s representations to its detriment when it
allowed him to erect the fence.
      Redburn offers a different interpretation of the letter. He contends that
Braman’s request for permission to erect a fence amounted to mere
acknowledgement that the City owned the storm-sewer pipes—not that the


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City had a right to drain over his property or to cause the massive erosion of
his land. Redburn further contends that Braman assumed the risk of any
damage resulting from placement of a fence over the storm-sewer pipes and
along his property lines abutting the City’s streets—not for the erosion of his
property by the City’s storm-sewer flow. And, based on his interpretation of
the letter, Redburn disputes that the City relied on the letter to its detriment.
      Braman’s letter is ambiguous in many respects. It is not clear what
representations the letter makes by asking permission from the City to build
a fence. Nor is it clear that Braman intended to assume the risk of damage to
his property caused by the storm-sewer flow, or that this assumption of risk
represented an implied drainage right. Regardless of these ambiguities, the
City has not demonstrated that it relied on the letter’s representations to its
detriment, citing no harm because of, or after, its initial decision to allow
Braman to erect the fence. Accordingly, the district court erred in granting
summary judgment on the basis that the City has an easement by estoppel.
Construing the facts and evidence in the light most favorable to Redburn, the
nonmovant, the City has not shown that there is no genuine dispute of material
fact or that it is entitled to judgment as a matter of law.
                                        B
      The City alternatively claims that it has an implied easement. “Under
Texas law, implied easements fall within two broad categories: necessity
easements and prior use easements.” Hamrick v. Ward, 446 S.W.3d 377, 381
(Tex. 2014).
                                        1
      “To successfully assert a necessity easement, the party claiming the
easement must demonstrate: (1) unity of ownership of the alleged dominant
and servient estates prior to severance; (2) the claimed access is a necessity


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and not a mere convenience; and (3) the necessity existed at the time the two
estates were severed.” Id. at 382. An easement by necessity arises where there
is no other right of way or access to the dominant estate; for example, when
the dominant estate is landlocked. See Koonce v. Brite Estate, 663 S.W.2d 451,
452 (Tex. 1984). This doctrine requires proof that access to a public road is
necessary. See Staley Family P’ship, Ltd. v. Stiles, 483 S.W.3d 545, 549 (Tex.
2016); Hamrick, 446 S.W.3d at 382 (stating that “the balance of [the court’s]
jurisprudence on necessity easements focuses on roadway access to landlocked,
previously unified parcels”). Because the City does not seek access to a public
road, it clearly is not entitled to a summary judgment declaring that it has an
easement by necessity over Redburn’s property.
                                       2
      To establish an easement by prior use, Texas law requires that the party
claiming the easement must prove “(1) unity of ownership of the alleged
dominant and servient estates prior to severance; (2) the use of the claimed
easement was open and apparent at the time of severance; (3) the use was
continuous, so the parties must have intended that its use pass by grant; and
(4) the use must be necessary to the use of the dominant estate.” Hamrick, 446
S.W.3d at 383 (citing Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207–08
(Tex. 1962).
The City contends that it has an easement over Redburn’s property to drain
storm-sewer runoff from the municipality because, when Braman quitclaimed
the small 0.11-acre parcel to the City for one dollar in 1939, he thereby severed
the small parcel from his 5.5-acre tract, and the 0.11-acre parcel was at that
time being drained by the ditch across the Braman property. Thus, the City
contends, Braman thereby granted it an easement by prior use to drain water
from the small parcel into the ditch across his property.


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      The City’s argument is meritless for several reasons. First, even if such
prior use existed, the City’s acquisition would give it the right to drain only the
0.11-acre parcel, not the entirety of the 122-acre field that it has used the ditch
across the Braman property to drain. Second, it is a highly disputed issue of
fact whether, at the time of the quitclaim, waters from the small parcel
naturally drained into the ditch. Finally, the quitclaim deed by which Braman
transferred his interest in the 0.11-parcel to the City clearly does not grant an
easement.
      Moreover, Redburn introduced plats and circumstantial evidence that
tend more strongly to show that the purpose of the parties in executing the
quitclaim deed was to grant the City the small but essential parcel it needed
to complete North Street, which abutted Braman’s land. The deed’s lack of
mention of drainage shows, at the very least, that there is a genuine factual
dispute regarding whether it had anything to do with the ditch or the storm-
sewer runoff. Also, we note that the metes-and-bounds description of the
quitclaim deed itself refers to the parcel as “an undedicated portion of North
Street between Smith Street and West Street” in the Town of Victoria, Texas.
Thus, the evidence demonstrates that the small strip was likely granted to the
City for the purpose of finishing North Street.
      “The basis of the doctrine [of prior use easements] is that the law reads
into the instrument that which the circumstances show both grantor and
grantee must have intended, had they given the obvious facts of the
transaction proper consideration.” Mitchell v. Castellaw, 246 S.W.2d 163, 167
(Tex. 1952). Here, the City has not demonstrated that it is entitled to summary
judgment on the basis of an easement by prior use because the evidence
strongly indicates the quitclaim parties did not have drainage in mind. To read
such an anomalous provision into their instrument, absent more evidence,


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would risk defeating the parties’ intent rather than reading in what the
circumstances show they must have intended. See Id. Accordingly, the City
has not demonstrated that it is entitled to summary judgment on the basis of
its easement-by-prior-use claim.
                                           IV
      Upon remand, if the City is unable to demonstrate at trial that it has an
easement to drain storm sewer runoff across Redburn’s property, Redburn will
be entitled to seek and offer proof for a declaratory judgment and monetary
damages. Alternatively, even if the City succeeds in proving it has such an
easement, Redburn contends that the City has abused and unreasonably
exercised that easement so as to severely damage Redburn’s property; and
that, therefore, the City must be required to extend, connect, and bury the
City’s pipes that discharge storm-sewer runoff on to his property, so that the
City’s drainage and sewage will traverse his property underground in a less
destructive and safer way.          He argues that the City has employed this
reasonable alternative method of storm-sewer drainage elsewhere throughout
the municipality and should be required to do so under the surface of the
Redburn property as well.
      The district court concluded that the specialized “accommodation
doctrine” developed by the Supreme Court of Texas to resolve disputes between
competing owners of surface and subsurface mineral and water estates does
not apply to easements. 3 However, although Redburn occasionally refers to


      3  Where there are disputes between the owners of surface estates and severed mineral
estates, particularly in the context of oil and gas leases and, more recently, groundwater
disputes, Texas courts have traditionally employed the accommodation doctrine. See Coyote
Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d 53, 63 (Tex. 2016) (extending the
accommodation doctrine to groundwater disputes based on a finding that there are
“similarities between mineral and groundwater estates” and between “their conflicts with
surface estates”); Getty Oil Co. v. Jones, 470 S.W.2d 618, 622 (Tex. 1971).. The
accommodation doctrine holds, in essence, that where a surface owner’s existing use of his

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the alternative relief he seeks as an “accommodation” to enable him to enjoy
the use of his property, we conclude that his claim is based on basic principles
of Texas property law and that he is not requesting that we invoke the
accommodation doctrine. Indeed, Redburn expressly states that an extension
of the accommodation doctrine is not necessary here; he argues instead that
the remedy he seeks, of requiring the City to extend and bury its drainage pipes
under his property, arises from state law principles of “reasonable use” that
preceded but ultimately gave rise to the doctrine in the oil and gas context. We
agree.
       The Supreme Court of Texas has described the basic principles of private
property rights “as fundamental, natural, inherent, inalienable, not derived
from the legislature and as pre-existing even constitutions.” See Severance v.
Patterson, 370 S.W.3d 705, 709 (Tex. 2012) (quoting Eggemeyer v. Eggemeyer,
554 S.W.2d 137, 140 (Tex. 1977)).             These constitutional protections must
underlie a court’s analysis in determining “the scope of the property rights at
issue.” Id.
       “Generally, an owner of realty has the right to exclude all others from
use of the property, one of the ‘most essential sticks in the bundle of rights that
are commonly characterized as property.’” Id. (quoting Dolan v. City of Tigard,
512 U.S. 374, 384, 393 (1994)); see also Loretto v. Teleprompter Manhattan
CATV Corp., 458 U.S. 419, 435–36 (1982) (the right to exclude is “one of the
most treasured strands in an owner’s bundle of property rights,” and “an owner
suffers a special kind of injury when a stranger directly invades and occupies
the owner’s property”). Property rights may be limited in a number of ways,



land is precluded or impaired by the actions of a subsurface lessee, and where there are
established industry alternatives available to the lessee to recover the minerals, reasonable
usage rules may require the lessee to adopt an alternative method to permit the servient-
estate owner to continue his preexisting use of his land. See Getty Oil Co., 470 S.W.2d at 622.

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however, including by consent of the owner, condemnation proceedings
resulting in payment of just compensation, the exercise of government police
power, easements, or longstanding pre-existing limitations in the rights of real
property owners. Severance, 370 S.W.3d at 710.
      Easements exist to benefit their holders for a specific purpose; they do
not divest an owner of title, but allow another to use the property for a specific
purpose. Id. at 721 (citing Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697,
700 (Tex. 2002)). “The existence of an easement ‘in general terms implies a
grant of unlimited reasonable use such as is reasonably necessary and
convenient and as little burdensome as possible to the servient owner.’” Id.
(quoting Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974)). “Because the
easement holder is the dominant estate owner and the land burdened by the
easement is the servient estate, the property owner may not interfere with the
easement holder’s right to use the servient estate for the purposes of the
easement.” Id. at 721 (citing Drye, 364 S.W.2d at 207; Vrazel v. Skrabanek, 725
S.W.2d 709, 711 (Tex. 1987)). In other words, Texas law firmly establishes
that an easement holder has the right to use the servient estate for the
purposes of the easement, but in a manner that does not cause unreasonable
damage to the servient owner’s property. Id. at 721.
      Redburn has presented evidence that the City’s use of his property may
not be “as little burdensome as possible” because the City’s storm-sewer system
has caused extensive damage to his property through erosion and pollution.
See id. Accordingly, if the City can demonstrate that it has an easement on
remand, the district court must consider whether the City’s use of Redburn’s
property comports with Texas state law principles of “reasonable use” and the




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obligation of easement holders to minimize the burden on the servient
property. 4
                                              V
       Redburn also contends that the effects of the City’s storm-sewer system
on his land amounts to a physical taking under the Fifth Amendment, entitling
him to compensation. The Fifth Amendment prohibits the government from
taking private property “without just compensation.” U.S. CONST. amend. V;
see also Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172, 176 n.1 (1985) (the Fifth Amendment applies to the states
through the Fourteenth Amendment (citing Chicago, B. & Q.R. Co. v. City of
Chicago, 166 U.S. 226, 241 (1897))). The permanent “physical occupation of
real property” by the government is a taking. Loretto, 458 U.S. at 426–27. A
physical taking may occur “where real estate is actually invaded by
superinduced additions of water, earth, sand, or other material . . . so as to
effectually destroy or impair its usefulness,” Pumpelly v. Green Bay & Miss.
Canal Co., 80 U.S. 166, 181 (1871), or where continuous flooding by the
government causes erosion, United States v. Dickinson, 331 U.S. 745, 750–51
(1947).



       4  The City contends that it is prohibited by the Texas Constitution from spending
taxpayer money to “improve” Redburn’s property by extending and burying the pipes. The
City points specifically to article III, section 52(a), which states, in relevant part: “[T]he
Legislature shall have no power to authorize any county, city, town or other political
corporation or subdivision of the State to lend its credit or to grant public money or thing of
value in aid of, or to any individual, association or corporation whatsoever . . .” Tex. Const.
art. III, § 52. The argument is premature because no one has challenged an action of the
state legislature or a political subdivision as a prohibited grant of public money to an
individual, association, or corporation. Further, the Supreme Court of Texas has construed
article III, section 52(a) as prohibiting only “gratuitous” payments of money to individuals,
associations, or corporations. See Texas Mun. League Intergovernmental Risk Pool v. Texas
Workers’ Comp. Comm’n, 74 S.W.3d 377, 383–84 (Tex. 2002); Edgewood Indep. Sch. Dist. v.
Meno, 917 S.W.2d 717, 740 (Tex. 1995). This case does not involve gratuitous payments of
public money.

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      The City contends, however, that Redburn’s federal takings claim is
time-barred. We agree. Courts considering claims brought under § 1983 must
borrow the relevant state’s statute of limitations for personal injury actions.
See Wilson v. Garcia, 471 U.S. 261, 271 (1985). In Texas, the applicable
limitations period is two years. See Burns v. Harris Cty. Bail Bond Bd., 139
F.3d 513, 518 (5th Cir. 1998) (citing TEX. CIV. PRAC. & REM. CODE § 16.003(a)).
Federal law governs when a cause of action under § 1983 accrues. Piotrowski
v. City of Houston, 51 F.3d 512, 516 n.10 (5th Cir. 1995). The limitations period
begins to run when the plaintiff “becomes aware that he has suffered an injury
or has sufficient information to know that he has been injured.” Id. at 516
(internal quotations omitted).
      Redburn purchased the property from the Braman family in 2004. The
record demonstrates that he wrote to the City complaining about the storm-
sewer system’s effects on his property as early as 2006. Thus, at the latest,
Texas’s two-year limitations period began to run in 2006 and expired in 2008.
Redburn did not commence this action until 2011, however, and his federal
takings claim is therefore time-barred. Accordingly, we affirm the district
court’s order of summary judgment with respect to this federal claim.
      Because the only federal-law claim in this case allowing its removal to
federal court has been eliminated as time-barred, the district court has
discretion to remand to state court if it determines that it would be
inappropriate to retain jurisdiction. See Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 (1988) (“[A] federal court should consider and weigh in each case,
and at every stage of the litigation, the values of judicial economy, convenience,
fairness, and comity in order to decide whether to exercise jurisdiction over a
case brought in that court involving pendent state-law claims.” (citing Mine
Workers v. Gibbs, 383 U.S. 715, 726–27 (1966))).


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                                    ***
      For these reasons, we AFFIRM the district court’s judgment dismissing
Redburn’s Fifth Amendment takings claim.         We otherwise VACATE the
district court’s judgment and REMAND the case for further proceedings
consistent with this opinion.




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