South-Western Legal Studies in Business

Unrecorded Defective City Sewer Line Not a Taking
Description Appeals court held that a sewer line that a city had failed to properly record, which overflowed during storms onto private property, did not constitute a taking under the Texas constitution.
Topic Constitutional Law
Key Words Taking; Nuisance; Liability; Governments
C A S E   S U M M A R Y
Facts The Kendalls bought a house and six acres of land in 1996. After they moved to the property, they learned that the city claimed a sewer line easement across the property. It had been installed in 1962 but was not recorded. The Kendalls claimed that they did not know about it at the time they bought the property. Several times, during heavy rains, the sewer line overflowed through a manhole onto their property. They complained to the state and to the city about the raw sewage. In 2000 they sued the city, claiming that the placement of the sewer line without a recorded easement constituted an unconstitutional taking of private property for public use in violation of the Texas constitution. They also claimed that the sewage overflow is a public nuisance. The trial court held in their favor; the city appealed.
Decision

Reversed and remanded. To recover on a nuisance claim against a governmental entity based on a waiver of governmental immunity, a claimant must establish that the nuisance rises to the level of a constitutional taking. This may happen when the government 1) knows that a specific act is causing identifiable harm, or 2) knows that the specific property damage is substantially certain to result from an authorized action that is incidental to or a consequence of the government's action. The gross negligence here does not rise to the level of a taking under the constitution, and so precludes the claim against the city for public nuisance.

Citation Karnes City v. Kendall, ---S.W.3d--- (2005 WL 1025362, Ct. App., Tex., 2005)

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