TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00544-CV
Ethel Domel and Norman Domel, Appellants
v.
City of Georgetown, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 94-020-C368, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING
DISSENTING OPINION
The majority holds that the City of Georgetown established that the intermittent stream flowing through the Domel's property meets the criteria of a watercourse as a matter of law. Consequently, the City's lawful discharge of effluent from the upstream wastewater treatment plant did not constitute a taking or damage the Domel's property. Accepting as true evidence in favor of the Domels, indulging every reasonable inference, and resolving all doubts in their favor, I conclude that Mrs. Domel's affidavit raises a material issue of fact about whether the intermittent stream meets the criteria for a watercourse under Texas law. Respectfully, I dissent.
Surface water is categorized into two general types: diffuse surface water and water that is within a watercourse. Diffuse surface water belongs to the owner of the property on which it gathers, so long as it remains on that land before it passes into a natural watercourse. See Turner v. Big Lake Oil Co., 96 S.W.2d 221, 228 (Tex. 1936). Water in a watercourse is the property of the State, held in trust for the public. See Tex. Water Code Ann. § 11.021(a) (West 1988). A watercourse has (1) a defined bank and beds, (2) a current of water, and (3) a permanent source of supply. See Hoefs v. Short, 273 S.W. 785, 787 (Tex. 1925). As the majority recognizes, the bed and banks of a watercourse may be "slight, imperceptible, or absent" in some instances without losing its character as a watercourse. Id. Additionally, the current of water "need not be continuous and the stream may be dry for long periods of time." Id. Finally, regarding the third element, the Hoefs court stated that "the stream must be such that similar conditions will produce a flow of water, and that these conditions recur with some regularity, so that they establish and maintain a running stream for considerable periods of time." Id. at 788.
Mrs. Domel stated that she and her husband have owned the property since 1948 and she was familiar with the appearance of the property and the area at issue. She characterized the disputed property as a "low place" or a "drainage area." Before the City started pumping effluent in October 1993, the seeps in the area were not enough to create a permanent source of water supply. Also before October 1993, the only time there was a steady flow of water through the area would be after significant rains. In a typical year before October 1993, the area was frequently dry during the late spring, summer, and early fall. During the remainder of the year, there might be water in the area, but the volume would vary greatly. Although the City's utility director inspected the area before 1990 and concluded that it was a watercourse with well-defined bed and banks, Mrs. Domel disputed this description. She stated that before October 1993, the area did not have a defined channel with well-defined bed and banks. Even with the relentless flow of the City's effluent, the area does not have a well-defined bed, banks, or channel.
Accepting as true Mrs. Domel's affidavit, indulging every reasonable inference, and resolving all doubts in favor of the Domels, I would hold that her affidavit raises an issue of material fact about whether the area at issue is a watercourse. Although I agree that the issue of whether an area is a watercourse may be decided as a matter of law, based on the evidence submitted in this case, I do not agree that the City has established the existence of all three Hoefs elements as a matter of law. I would reverse the summary judgment and remand the cause to the district court for further proceedings.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel
Filed: November 12, 1999
Publish
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DISSENTING OPINION
The majority holds that the City of Georgetown established that the intermittent stream flowing through the Domel's property meets the criteria of a watercourse as a matter of law. Consequently, the City's lawful discharge of effluent from the upstream wastewater treatment plant did not constitute a taking or damage the Domel's property. Accepting as true evidence in favor of the Domels, indulging every reasonable inference, and resolving all doubts in their favor, I conclude that Mrs. Domel's affidavit raises a material issue of fact about whether the intermittent stream meets the criteria for a watercourse under Texas law. Respectfully, I dissent.
Surface water is categorized into two general types: diffuse surface water and water that is within a watercourse. Diffuse surface water belongs to the owner of the property on which it gathers, so long as it remains on that land before it passes into a natural watercourse. See Turner v. Big Lake Oil Co., 96 S.W.2d 221, 228 (Tex. 1936). Water in a watercourse is the property of the State, held in trust for the public. See Tex. Water Code Ann. § 11.021(a) (West 1988). A watercourse has (1) a defined bank and beds, (2) a current of water, and (3) a permanent source of supply. See Hoefs v. Short, 273 S.W. 785, 787 (Tex. 1925). As the majority recognizes, the bed and banks of a watercourse may be "slight, imperceptible, or absent" in some instances without losing its character as a watercourse. Id. Additionally, the current of water "need not be continuous and the stream may be dry for long periods of time." Id. Finally, regarding the third element, the Hoefs court stated that "the stream must be such that similar conditions will produce a flow of water, and that these conditions recur with some regularity, so that they establish and maintain a running stream for considerable periods of time." Id. at 788.
Mrs. Domel stated that she and her husband have owned the property since 1948 and she was familiar with the appearance of the property and the area at issue. She characterized the disputed property as a "low place" or a "drainage area." Before the City started pumping effluent in October 1993, the seeps in the area were not enough to create a permanent source of water supply. Also before October 1993, the only time there was a steady flow of water through the area would be after significant rains. In a typical year before October 1993, the area was f