Canyon Regional Water Authority v. Guadalupe-Blanco River Authority
(Tex. May 16, 2008)(Green) (easement dispute between governmental entities, condemnation, takings law,
In this case the Supreme Court decides whether a state water authority had authority under an existing easement
to build a second water intake and pipeline to draw water from a lake to meet growing demand from its customers.
The Court holds that the easement did not grant rights for that construction. May the water authority condemn an
easement for construction and operation of the second intake and pipeline? On this question the Court answers in
the affirmative, holding that the prospective easement, which limits access to only a small portion of the lake, does
not practically destroy the lake’s public recreational use.
Disposition: Court of appeals’ judgment affirmed in part, and reverse and remand in part.
Canyon Regional Water Authority v. Guadalupe-Blanco River Authority, No. 06-0873 (Tex. May 16, 2008)(Opinion
by Paul Green) (intergovernmental dispute over easement for water extraction from lake, condemnation power)
CANYON REGIONAL WATER AUTHORITY v. GUADALUPE-BLANCO RIVER AUTHORITY; from Guadalupe County;
4th district (04-05-00943-CV, 211 S.W.3d 351, 06-21-06)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial
court. Justice Green delivered the opinion of the Court.
Terms: intergovernmental dispute | government entities suing each other | suits between governmental entities |
water law | eminent domain | easement | public use of lake | recreational use | restricted zone | trespasser |
See more --> 2008 Texas Supreme Court Opinions | Per Curiam Opinions | 2007 Texas Supreme Court Opinions |
Canyon Regional Water Authority v. Guadalupe-Blanco River Authority (Tex. 2008)
Argued November 15, 2007
Justice Green delivered the opinion of the Court.
In this case we decide whether a state water authority properly relied on its existing easement as authority to
construct a second water intake and pipeline to draw water from a lake to meet growing consumption demands. We
hold that the easement did not grant rights for that construction. We next decide whether the water authority can
condemn an easement for construction and operation of the second intake and pipeline. We hold that the
prospective easement, which restricts access to only a small portion of the lake, does not practically destroy the
lake’s public recreational use. We therefore affirm the court of appeals’ judgment in part, and reverse and remand
Guadalupe-Blanco River Authority and Canyon Regional Water Authority are both agencies and political
subdivisions of the State of Texas. The River Authority owns Lake Dunlap and uses it for generating hydroelectric
power, flood control, public recreation, and providing water to the Water Authority. Under their contractual
arrangement, the River Authority granted an easement to the Water Authority, under which the Water Authority
draws water through an intake and pipeline structure from the lake to its nearby pumping station. The Water
Authority then sells that water to water districts and municipalities in Guadalupe, Comal, and Bexar Counties.
To satisfy increased consumption and increasingly strict aquifer restrictions, the Water Authority developed plans
to expand its Lake Dunlap water treatment plant’s capacity from six million gallons per day to sixteen million gallons
per day. The original water intake and pipeline could not accommodate the increased volume, so the Water
Authority proposed to add a second intake upriver from the existing intake and the lake’s dam. Initially, the River
Authority approved the proposal. But it changed its mind one month after construction began and sued the Water
Authority, seeking declaratory and injunctive relief and arguing that the Water Authority’s construction was outside
of the scope of the easement. The Water Authority responded that the easement allowed the new intake location,
and alternatively counterclaimed for condemnation of the property required to complete the project.
The River Authority obtained a temporary restraining order halting construction, which the trial court subsequently
dissolved upon being persuaded that the River Authority had an adequate remedy at law and thus did not need
injunctive relief. The River Authority then moved for partial summary judgment on two grounds: (1) the easement
agreement does not authorize the Water Authority’s expansion, and (2) the Water Authority cannot condemn the
property right to draw water that it seeks. The Water Authority moved for partial summary judgment on the ground
that it has the right to condemn whatever new right-of-way is necessary to construct the second intake. The trial
court concluded that the Water Authority’s easement allows the Water Authority to construct the second intake and
gives it limited power to identify and describe any needed right-of-way. The trial court further held that the Water
Authority has the right of eminent domain to take what it needs for the second intake, but that the River Authority
can seek compensation for any taking. The River Authority appealed, and the court of appeals reversed the trial
court, holding that the easement allows for only one intake. 211 S.W.3d 351, 356 (Tex. App.—San Antonio 2006).
The court of appeals further held that the Water Authority presented no evidence showing that the Water Authority’
s “purpose could not be otherwise accomplished,” id. at 358, and thus granted summary judgment for the River
Authority on the condemnation claim and remanded the case to the trial court to determine attorney’s fees, id. at
The Water Authority appealed, arguing that its easement over Lake Dunlap’s surface is sufficient to allow
construction of the second intake and pipeline. Alternatively, the Water Authority argues that it may properly
condemn any additional property under its general eminent domain powers. See Act of May 22, 1989, 71st Leg., R.
S., ch. 670, § 4.03, 1989 Tex. Gen. Laws 2211, 2213–14. We hold that the easement does not give the Water
Authority sufficient rights to construct the new intake pipeline, but that the Water Authority may obtain the
necessary rights by condemnation.
“When both parties move for summary judgment and the trial court grants one motion and denies the other, the
reviewing court should review the summary judgment evidence presented by both sides and determine all
questions presented and render the judgment the trial court should have rendered.” Tex. Workers’ Comp. Comm’n
v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004).
The Water Authority argues that the plain language of its easement agreement allows it to build the second water
intake and pipeline. The express terms of the easement determine the scope of the easement holder’s rights.
DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex. 1999). “The rules of contract construction and
interpretation apply to easement agreements.” Id. at 100.
Here the River Authority granted to the Water Authority “an easement and right-of-way over and across all that
certain tract or parcel of land . . . described in Exhibit ‘A.’” Exhibit A describes two parcels, the second of which is
labeled “An Easement for the Construction and Use of a River Water Diversion Point and a 200' Restricted Zone
Easement on the Surface of Lake Dunlap.” It contains a metes-and-bounds description that corresponds with the
location of the first water intake and pipeline, and a restricted zone easement on the surface of Lake Dunlap
marked by a 200-foot radius from the inlet location. The description further provides that “Parcel 2 is for the
purpose of allowing the construction, operation, and maintenance of the intake diversion piping and to restrict
further use of the area within the 200' radius on the surface of Lake Dunlap in accordance with the requirements of
the Texas Health Department regulations.” As the court of appeals noted, the grant of the easement serves two
purposes: to allow for the intake pipeline and to allow for its required 200-foot restricted zone radius. 211 S.W.3d at
356. The easement agreement cannot be read to grant the Water Authority any interest beyond those two express
purposes. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700–01 (Tex. 2002) (holding that the scope
of the conveyed interest is determined by the express terms of the grant and that “if a particular purpose is not
provided for in the grant, a use pursuing that purpose is not allowed”). We thus affirm the court of appeals’
decision that the easement does not itself convey to the Water Authority sufficient rights to construct the new water
The Texas Legislature granted the Water Authority eminent domain power for various purposes, Act of May 22,
1989, 71st Leg., R.S., ch. 670, § 4.03, 1989 Tex. Gen. Laws 2211, 2213–14, including the authority to obtain rights
it needs “to build, operate, and maintain facilities for the treatment and transportation of water,” id. § 2.02(2), 1989
Tex. Gen. Laws at 2212. The River Authority does not dispute the Water Authority’s power to condemn property for
public use, but the River Authority argues that the Water Authority cannot condemn an easement to expand its
Lake Dunlap water intake facilities because doing so would practically destroy the existing public use of the lake.
We have long held that condemnees may prevent a condemnation when the property is already devoted to
another public use and the condemnee establishes that the new condemnation “would practically destroy the use
to which it has been devoted.” Sabine & E. T. Ry. Co. v. Gulf & I. Ry. Co. of Tex., 46 S.W. 784, 786 (Tex. 1898). In
Sabine one railroad company sought to condemn a right-of-way across another railroad’s yard so that it could
connect to a third railroad’s existing lines. Id. at 784. The question presented was whether the first railroad could
exercise its eminent domain power to condemn property already devoted to public use. Id. at 785. We held that if
the condemnee can show that the condemnation would practically destroy the existing use, then to succeed with
the condemnation the condemnor must show that “the necessity be so great as to make the new enterprise of
paramount importance to the public, and it cannot be practically accomplished in any other way.” Id. at 786–87.
Lower courts remain unsettled regarding what proof is necessary to satisfy the practical destruction standard and
invoke the paramount purpose test. See Snellen v. Brazoria County, 224 S.W.2d 305, 311 (Tex. Civ. App.—
Galveston 1949, writ ref’d n.r.e.) (holding that condemning a portion of the center of a boulevard in an
unincorporated town for the purpose of constructing a fire station did not materially interfere with the existing use of
the boulevard and thus did not trigger the paramount importance requirement); Cent. Power & Light Co. v. Willacy
County, 14 S.W.2d 102, 103 (Tex. App.—San Antonio 1929, no writ) (holding that the paramount importance
requirement is triggered when “the proposed use will completely exclude the existing use”); Tex. & N. O. R. Co. v.
City of Beaumont, 285 S.W. 944, 949 (Tex. Civ. App.—Beaumont 1926, writ ref’d) (concluding that condemnation
could proceed if the new use would not “seriously impair or interfere with” the existing use). We have indicated that
the standard may be met when “the second use to which the property is sought to be put will destroy, or, at least,
materially interfere with, that to which such property has been previously devoted.” Ft. Worth & R. G. Ry. Co. v. Sw.
Tel. & Tel. Co., 71 S.W. 270, 274–75 (Tex. 1903) (reciting the standard before holding that the proposed use “may
be applied consistently with the prior use,” so application of the standard was unnecessary). The River Authority
must show that the Water Authority’s proposed condemnation will practically destroy or at least materially interfere
with the existing public use of Lake Dunlap to force the Water Authority to demonstrate that its purpose for
condemnation is of paramount importance and cannot be practically accomplished in any other way.
The court of appeals relied on the affidavit of Fred Blumberg, the River Authority’s Deputy General Manager and
Chief Operations Officer, to hold that the Water Authority’s new pipeline and intake structure results in practical
destruction of part of the lake’s existing use. 211 S.W.3d 351, 357–58. Blumberg stated:
One result of this proposed construction would be, to the extent that the restricted zones do not overlap, a second
200-foot restricted area that would materially impact the recreational use of Lake Dunlap, and potentially create a
safety hazard, because boats and other watercraft would find it more difficult to make turns safely in the middle of
This evidence supports a conclusion that the Water Authority’s new intake destroys a portion of Lake Dunlap’s
recreational use, but one must look to the entire use of the affected property, and not a portion of its use, when
considering practical destruction or material interference. See Quanah Acme & P. Ry. Co. v. Swearingen, 4 S.W.2d
136, 138 (Tex. Civ. App.—Texarkana 1947, writ ref’d) (affirming an injunction commanding a railroad company to
remove its platform because the platform “completely obstructed the entrance of an alley” already devoted to
public use); Sabine, 46 S.W. at 785–86 (refusing to allow condemnation of a right-of-way across a railroad yard
because allowing the condemnation would make the existing uses impracticable); Snellen, 224 S.W.2d at 311
(holding that condemnation of an esplanade between streets to build a fire station would not impair the existing
public use of the street as a whole); cf. Tahoe-Sierra Pres. v. Tahoe Reg’l Agency, 535 U.S. 302, 327 (2002) (“[W]
here an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a
taking.” (quoting Andrus v. Allard, 444 U.S. 51, 65–66 (1979))). If the test applies only to a part of the affected
property, a condemnee can nearly always shift the burden to the condemnor. Every utility pole, railroad, highway,
or storm drain practically destroys the existing public use of a small portion of the right-of-way upon which it is built.
Such an application of the Sabine test would render the practical destruction inquiry superfluous.
Texas Commission on Environmental Quality regulations require that a “restricted zone of 200 feet radius from the
raw water intake works shall be established and all recreational activities and trespassing shall be prohibited in this
area.” 30 Tex. Admin. Code § 290.41(e)(2)(C). The River Authority argues that the Water Authority’s construction
of a second intake and pipeline creates a new restricted zone that makes nearly two acres of Lake Dunlap
unavailable for recreation and other uses. But the record shows that the total surface area of Lake Dunlap covers
410 acres. The newly created restriction prevents access to less than one half of one percent of Lake Dunlap’s
total surface area. Restricting recreational access to less than two acres of a 410-acre lake may practically
destroy the recreational use of that portion of the lake, but it has no impact on the recreational use of the more
than 400 remaining acres of the lake. With so much of Lake Dunlap’s surface remaining unrestricted, the new
intake’s restricted zone cannot be said to practically destroy the lake’s existing recreational use.
Nor can the new restricted zone be said to materially interfere with the lake’s recreational use. In an analogous
context, we have held that “whether access rights have been materially and substantially impaired is a question of
law.” State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996) (deciding whether a landowner could recover compensation for a
highway construction condemnation that impaired access to his land). Limiting access to a tiny portion of Lake
Dunlap does not materially interfere with recreational use when so much of the lake remains unaffected. Cf. City of
San Antonio v. TPLP Office Park Prop., 218 S.W.3d 60, 66–67 (Tex. 2007) (per curiam) (holding that a city
ordinance closing an access point to a business park did not materially impair access to the park when several
other access points remained unaffected). Though Blumberg expressed concern about the safety of boats and
other watercraft turning in the middle of the lake, there is no evidence that an actual safety hazard exists, as boats
can avoid any potential hazard by simply turning before reaching the new restricted zone. Taking into account all of
the unaffected area of the lake where boats can be safely piloted, the new restricted zone will not materially
interfere with the recreational use of the lake.
The River Authority has alleged that the new intake destroys its ability to use Lake Dunlap for hydroelectric power
generation, arguing that the new restricted zone obstructs the River Authority’s access to critical portions of the
Lake Dunlap Dam, which the River Authority must have to perform maintenance on the spillgates. But as the trial
court held, the River Authority can still freely cross the restricted zone to access the dam because the zone only
prohibits recreational activities and trespassing for third parties. As the owner of the lake, the River Authority
cannot be a trespasser, and is not deprived of access by the restricted zone. See Pilcher v. Kirk, 55 Tex. 208
(1881) (defining a trespasser as “one who, not having the title to land, without the consent of the true owner,
makes entry thereon” (emphasis added)).
The River Authority has failed to demonstrate that the restricted zone created by the Water Authority’s new intake
practically destroys or materially interferes with any existing public use of Lake Dunlap. We therefore need not
answer whether the new use is of paramount importance and can be accomplished in any other practical way.
We hold that the Water Authority is authorized to condemn an easement necessary to construct and maintain its
second water intake and pipeline. Accordingly, we reverse the condemnation portion of the court of appeals’
The Water Authority’s easement on Lake Dunlap did not grant the right to construct a second water intake and
pipeline. We thus affirm the court of appeals’ interpretation of the easement agreement. However, because the
Water Authority has the power to condemn the property and the condemnation would not practically destroy or
materially interfere with any existing public use of Lake Dunlap, we reverse the condemnation portion of the court
of appeals’ judgment and remand the case to the trial court for further condemnation proceedings and to
determine damages, if any, sustained by the River Authority.
PAUL W. GREEN
OPINION DELIVERED: May 16, 2008
 After the trial court dissolved the restraining order, the Water Authority completed construction of the second
intake structure and pipeline. The intake has now been in use for more than three years.
 Though the River Authority claims that 1.8 acres of Lake Dunlap’s surface is unusable, the record indicates that
significantly less area is restricted by the new intake zone. The record shows three restricted zones at the dam end
of the lake. The Lake Dunlap Dam created the first one; the old intake created the second; the new intake creates
the third. These zones overlap extensively, and the new intake’s zone reaches very little previously unrestricted
surface area. The new intake is roughly 150 feet from the dam, and the dam’s restricted zone extends 200 feet.
That means that it reaches nearly 50 feet beyond the new intake, covering well over half of the area required to be
restricted by the new intake. A portion of the old intake’s restricted zone overlaps with the remaining restricted zone
of the new intake as well. By our calculations, the new intake’s restricted zone likely reduces Lake Dunlap’s
available surface area by as little as 0.9 acres, or only 0.22% of the total 410-acre surface.
 Three amici in this case argue that recreational use is not an existing public use under the practical destruction
test because recreation is not the primary purpose of the River Authority. The River Authority’s primary purpose is
irrelevant when determining if recreation is a valid protected public use. We assume without deciding that
recreation is a valid public use of state water. See Tex. Water Code § 11.024(6).
 Though our holding does not reach the question, we note that the Legislature has deemed the Water Authority’
s proposed use paramount.
[I]n appropriating state water preference shall be given to the following uses in the order named:
(1) domestic and municipal uses, including water for sustaining human life and the life of domestic animals, it
being the public policy of the state and for the benefit of the greatest number of people that in the appropriation of
water as herein defined, the appropriation of water for domestic and municipal uses shall be and remain superior to
the rights of the state to appropriate the same for all other purposes;
(2) agricultural uses and industrial uses, which means processes designed to convert materials of a lower
order of value into forms having greater usability and commercial value, including the development of power by
means other than hydroelectric;
(3) mining and recovery of minerals;
(4) hydroelectric power;
(6) recreation and pleasure; and
(7) other beneficial uses.
Tex. Water Code § 11.024 (emphasis added).