Despite its caption, the opinion of the Texas Supreme Court in Wheeler v. Enbridge Pipelines (East Texas), L.P., No. 13-0234 (Aug. 29, 2014) isn’t another one of those can-they-or-can’t-they pipeline cases.
But it’s a case that takings mavens might find intersting anyway, because the court sets out how a property owner is compensated for the destruction of trees.
Enbridge wanted to construct its pipeline on Wheeler’s heavily wooded property, used by the family as a retreat. Wheeler agreed to a right of way, “but insisted that Enbridge install the pipeline by boring underground in order to preserve the trees on the property.” Slip op. at 2. Seems reasonable to us. Enbridge specially approved the condition. Despite these precautions, however, Enbridge damaged Wheeler’s trees:
Soon after the parties executed the agreement, Enbridge hired a construction company to build the pipeline, but failed to inform the contractors about the provision requiring them to use the boring method to install the pipeline. As a result, in clearing the right of way the construction company cut down several hundred feet of trees and bulldozed the ground. In the process, the workers also channelized the stream that once meandered through the woods.
Id. Oops. Wheeler sued for breach of contract and trespass.
The Supreme Court’s opinion is a fun read — really! — about how to go about valuing the damage to the trees. Were they temporarily damaged or permanently (they can be replaced)? Does it matter whether the claim for relief is characterized as one of contract or tort? Does the jury or a court decide whether damage is temporary or permanent? Do trees have an intrinsic value?
Wheeler v. Enbridge Pipelines (East Texas), L.P., No. 13-0234 (Tex. Aug. 29, 2014)