Brookshire Katy Drainage District v. the Lily Gardens, LLC, Richard E. Fluecker and Kenneth B. Luedecke ( 2010 )

Opinion issued September 10, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-00431-CV

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Brookshire Katy Drainage District, Appellant

V.

The Lily Gardens, LLC, Richard E. Flueckiger and Kenneth B. Luedecke, Appellees

On Appeal from the 9th District Court

Waller County, Texas

Trial Court Case No. 06-08-18415

DISSENT FROM OPINION ON REHEARING

Because I believe the District has produced more than a scintilla of evidence that raises a genuine issue of material fact, I respectfully dissent. 

The word “may” as used in the easement language contemplates future events which by their nature are speculative.  The pictures of the bridge covering are in and of themselves sufficient to raise a fact issue (i.e., showing that the bridge covering includes walls on the side of the bridge that prevent people and machinery from reaching down off of the bridge into the waterway below).  In my judgment, expert testimony is not necessary to reach the conclusion that some future event “may” require access to the top of the bridge/culvert by the District to make repairs and/or improvements to the canal directly below due to circumstances that “may injure, endanger, or interfere with the . . . maintenance and repair of said drainage canal” as in the language of the easement. 

It is within the common knowledge of all that to work on the large pipes seen in the pictures might require the use of equipment that may need to be placed on the top of the bridge/ culvert. To insist the District come forth with exacting evidence to make the future certain asks for more than the burden required by law. 

Further, to reach its conclusions, it appears the majority must necessarily believe that the top of the bridge/ culvert is not in the easement.  This result flows from a narrow interpretation of the easement language which I do not believe is supported by the law as outlined in the original opinion.  Because I would stand on the original opinion of the court, return the case below for further consideration of the merits of the issues presented, I respectfully dissent.

Davie L. Wilson

Justice, Retired

Panel consists of Justices Alcala, Hanks, and Wilson.[1]

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[1]           The Honorable Davie L. Wilson, retired Justice, First Court of Appeals, participating by assignment.