October 2, 2015 § Leave a comment
In State of Texas v. KNA Partners, the State challenged the trial court’s judgment in favor of the appellee property owner, KNA Partners. The State sought to condemn a portion of KNA’s property, which included nine driveways. However, the trial’s decision involved conditioning the transfer of title on the State’s restoration of the nine driveways to KNA’s property. The State appealed this decision, arguing that KNA was granted more relief than it was entitled to under Texas law.KNA argued the appeal is moot because the driveways in question have already been constructed.
KNA owned property at the intersection of IH 610 and Old Katy Road in Harris County, Houston, Texas. The site had nine driveways providing access to the IH 610 and one driveway to Old Katy Road. The State sought to condemn 0.2 acres of KNA’s property for the widening of U.S. Highway 290 (“290”) at the intersection of 290, IH 610 and Old Katy Road. The property the State condemned was a strip of land, thirteen-and-a-half feet wide located along the entire length of the property and included the nine driveways connecting to IH 610.
The issue pending at trial was the amount of just compensation due to KNA as a result of the State’s condemnation of its property. The State said it would provide access to the highway from KNA’s remaining property. All nine driveways that existed prior to condemnation would be reestablished to provide KNA the same driveway access as before the taking.
In its final judgment, the trial court ruled that the State’s title to the property was subject to its agreement to restore the nine driveway locations along the new frontage road abutting KNA’s remainder property that the State represented to KNA before trial and to the Court and jury at trial that it would do.
On appeal, the State challenged the trial’s decision to condition the transfer of title on its restoration of the driveways to KNA’s property. The State argued the trial court granted KNA more relief than it requested and that the trial court’s judgment is erroneous because the State “has the right to change its construction plan even long after the condemnation process is completed” and “that right is destroyed if obtaining passage of title is subject to a particular construction plan.”
KNA countered that the State’s appeal is moot because the driveways have already been constructed. If the Court were to accept the State’s argument and delete the State’s requirement to build the nine driveways, there would be no practical legal effect. Since the driveways have already been built, the only relief the State could be granted is that it did not have to build the highways it has built.
The State retorted that without the relief it’s requesting, “the State will not be able to obtain title insurance for the property without proving to the satisfaction of a title company that the access drives have been restored.”
The Houston First Court of Appeals dismissed the State’s appeal as moot.The Court explained that a justiciable controversy must involve “a real and substantial controversy involving genuine conflict of tangible interest and not merely theoretical dispute.”
State v. KNA Partners reinforces the idea that an eminent-domain issue becomes moot when a party seeks a ruling on some matter that, when rendered, would not have any practical legal effect on the just compensation awarded by the jury.
. State v. KNA Partners, No. 01-14-00723-CV, 2015 WL 4603385 *1 (Tex. App.—Houston [1st Dist.] 2015, no pet. h.).
. Id. at *2.
. Id. at *3.
. Id. at *1.
. Id. at *3.
. Id. at *2.
November 30, 2013 § Leave a comment
The supreme court’s decisions in Texas Rice Land Partners v. Denbury Green Pipeline-Texas, LLC and the Texas Legislature’s unanimous passage of Senate Bill 18 – reflect the trend to provide greater protections to landowners.
What has now come to be known as a “Denbury Challenge” is arguably a rejection of the historically established process through which pipeline companies attained their right of eminent domain. The Court begins by stating “the Texas Constitution safeguards private property by declaring that eminent domain can only be exercised for ‘public use.’” The ruling holds that simply checking off a box on a government form designating the pipeline as a “common carrier” is not sufficient to assume it is to be used as such. The Court found that simply filling out the Form T-4 permit and filing it with the Texas Railroad Commission was not conclusive proof of common carrier status and, therefore, a public use. In order for a pipeline to be considered a “common carrier”, the Court explained that the users must be more than the corporation funding the project or its subsequent affiliates; it must be open to public use. However, it is the notion of “affiliate” that Denbury attempted to use to establish their right to eminent domain. The term has been translated as referring to a body with some sort of operational control, percentage ownership of the parent company, or both. Unfortunately for the pipeline company, which is actually a subsidiary of a subsidiary of Denbury Resources, Inc., it was classified as an “affiliate” of the parent corporation, and therefore restricted from claiming “common carrier” status and subsequent eminent domain rights.
But Denbury was not a direct challenge on the right to condemn, but rather the landowner’s refusal to allow the pipeline company access to survey his land. As part of the eminent-domain process, a pipeline company often needs to gain the right to survey a parcel of land early in the condemnation process. If consent is not given by the landowner, then the pipeline company may be forced to file a Temporary Restraining Order (TRO) against the landowner. During this process, the company must also designate whether it claims “common carrier” status. To claim this designation, pipeline companies often produce the Form T-4 permits from the Texas Railroad Commission to establish a public use. To be considered a common carrier, a pipeline company is required to “present reasonable proof of a future customer”, one “who will either retain ownership of their gas or sell it to parties other than the carrier”. The Texas Supreme Court rejected the Form T-4 as conclusive proof of public use and looked to other evidence such as the company’s own website. The Court explained:
Under our test, Denbury Green did not establish common-carrier status as a matter of law. A Denbury Green vice president attested that Denbury Green was negotiating with other parties to transport anthropogenic CO2 in the pipeline, and that the pipeline “can transport carbon dioxide tendered by Denbury entities as well as carbon dioxide tendered from other entities and facilities not owned by Denbury.” This affidavit does not indicate whether Denbury Green itself intended to use all of that gas for its own tertiary recovery operations. As discussed above, a carrier is not a common carrier if it transports gas only for its own consumption. The witness also stated in his deposition that the CO2 carried in the pipeline would be owned by affiliate Denbury Onshore, but that there was “the possibility we’ll be transporting other people’s CO2 in the future.” He did not identify any possible customers and was unaware of any other entity unaffiliated with Denbury Green that owned CO2 near the pipeline route in Louisiana and Mississippi. This evidence does not establish a reasonable probability that such transportation would ever occur. Further, the record includes portions of Denbury’s own website that suggest the pipeline would be exclusively for private use.
Although Denbury did not provide enough evidence to prove its common carrier status, the Denbury decision may arguably be limited to challenging common carrier status of carbon dioxide and hydrogen pipelines. Nevertheless, pipeline companies should expect disclosure requests, discovery, and litigation regarding whether the Denbury decision should be extended to other common-carrier pipelines that follow a similar T-4 application process.
 Id. at 195.
 Id. at 204.
 Id. at 198.
 Id. at 200.
 See id.
 See id. at 200-01.
 Ken McKay, The Denbury Decision: What it Says, What it Doesn’t Say & What People Say it Says, University of Texas School of Law: 11th Annual Gas and Power Institute (2012); Denbury, 363 S.W.3d at 204.
 Denbury, 363 S.W.3d at 202-03.
 Id. at 202 n. 28; see also Rhinoceros Ventures Group, Inc. v. TransCanada Keystone Pipeline, L.P., 388 S.W.3d 405, 409 (Tex.App.—Beaumont 2012, pet. filed) (noting that the Denbury opinion is limited to person seeking common-carrier pipeline status under Section 111.002(6) and expressed no opinion concerning other pipelines).
 Ken McKay, The Denbury Decision: What it Says, What it Doesn’t Say & What People Say it Says, University of Texas School of Law: 11th Annual Gas and Power Institute (2012).
 Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192 (Tex. 2012); see also 381 S.W.3d 465 (Tex. 2012) (denying rehearing).
 LaSalle Pipeline, LP v. Donnell Lands, L.P., 336 S.W.3d 306 (Tex. 2011).