State of Texas Steals Dirt from Landowner

It's a nice headline, but the conclusion comes from a case just decided by the 14th Court of Appeals in Houston. It seems that the State (surprisingly) decided to improve a highway, and needed land to build a detention pond. A detention pond catches all the water that runs off the concrete, that might otherwise be soaked into the land. The State tried to condemn land to do this, but eventually negotiated a permanent easement with the landowner allowing the State to have its pond.

The State then built the pond, but in the course of doing so, carted off some 87,500 cubic feet of dirt. It then hauled the dirt to its other construction projects and used it. Although it paid for the easement, it didn't pay for the dirt. When the landowner found out that the State had taken the dirt and used it for another purpose, they sued. The State claimed that the dirt was part of the deal, even though the dirt was never mentioned in the negotiated agreement. The State countered that use of the dirt was implied.

The Court of Appeals adroitly noted:

The State, no novice to construction projects, knows the value of dirt. It is also quite likely, though this case has not progressed to the point of determining the value of the dirt removed, that it exceeds the $55,000.00 paid ... for the permanent easement.

In this case the State actively negotiated and procured an easement for the single purpose of building a water detention facility, but then proceeded to remove thousands of cubic meters of soil from that location for a purpose unrelated to the construction of the detention facility. While it may be "reasonably necessary" for the state to displace the soil to dig the detention facility, the state provided no testimony or other evidence that it was reasonably necessary for it to cart off an enormous amount of soil to another location ... and use it for its own purposes.

I assume that if the shoe was on the other foot, the State would insist on being paid for dirt. I'm glad to see the landowners did here.

Note: I don't know who the little kid on the big pile of dirt is in the picture for this post, but that is a very big pile...maybe 87,500 cubic feet?