Before it condemned a parcel of land in Bastrop County, the State of Texas made a bona fide offer to purchase to the owners of the fee as mandated by Texas law, which requires that a condemnor make an offer to the "property owner," and provide a statement "to the landowner[.]"
But in In re Texas, No. 03-20-00447 (Dec. 2, 2020), the land being taken was also subject to an easement. And Texas didn't make any kind of offer to the owners of the easement, whose parcel would otherwise be landlocked. The trial court abated (dismissed), and Texas sought mandamus review, arguing that the owners of the easement are not "property owners" as contemplated in the statute.
The court of appeals agreed. The statute does not expressly define "property owner." After noting that the plain meaning controls, the court glossed over the plain meaning of "property owner" (under which, you'd think that because an easement is a property interest, the owner of that interest would be a "property owner"), and went straight to context, concluding that the legislature intended "property owner" to mean only the owner of a fee interest.
The court also noted that this "makes sense" -
From a policy perspective, it makes sense that regardless of whether the condemnor seeks to acquire the real property itself or merely a real-property interest, such as a lease or an easement, the condemnor must be required, at a minimum, to notify and negotiate with the fee owner of the real property that the condemnor seeks to take or to take an interest in. On the other hand, a given tract of real property may have numerous interest holders associated with it, including leaseholders, surface-interest owners, mineral-interest owners, and easement holders. While these interest holders are potentially entitled to participate in the proceedings to seek compensation if their interests are affected, requiring the condemnor to make a bona fide offer to each of them would not comport with the statute’s purpose, which is “to provide a speedy and fair assessment of damages.”
Slip op. at 10 (citation omitted).
Now this may just be a way of backing into the "undivided fee" rule (under which the owners of easements would not be entitled to separate compensation), but the court's contrasting "property owner" with the owner of a "real property interest" just falls a bit flat to us. Maybe this is the wrong result, maybe it isn't. This is a statutory case, after all, so it all goes back to what the Texas legislature meant when it required a bona fide precondemnation offer to a "property owner."
In re Texas, No. 03-20-00447-CV (Tex. App. Dec. 2, 2020)
