Brownlow v. State

In Brownlow v. State, 251 S.W.3d 756, 760-61 (Tex. App.--Houston 14th Dist. 2008, pet. granted), the Brownlows granted the State an easement to build a water detention facility as part of the State's highway construction project, describing the easement as: "a permanent easement in the property . . . for the purpose of opening, constructing, and maintaining a detention/mitigation facility in, over, and across the tract of land for the purpose of making additions to, improvements on, and repairs to said detention facility or an part thereof. . . ." Id. at 759. Thereafter, the State began removing large amounts of soil and used the soil in another section of the highway project. Id. The court held that the easement allowed the State to excavate soil from the property but did not allow the State to take the soil and use it for its own purposes: "While it may be "reasonably necessary" for the State to displace the soil to dig the detention facility, the State provided no testimony or other evidence that it was reasonably necessary for it to cart off an enormous amount of soil to another location not owned by the Brownlows and use it for its own purposes. This court takes judicial note that in the marketplace today soil is a valuable commodity. Having bargained only for an easement, the State is not entitled to ownership of the extracted soil." (Id. at 762.)