In Dalon v. City of DeSoto, 852 S.W.2d 530 (Tex. App.--Dallas 1992, writ denied), homeowners complained the city caused excessive erosion of the bank of a creek abutting their property thereby eroding about ten feet of their yard. Id. at 532.
The homeowners claimed the city had approved upstream development and routed storm sewers into the creek discharging storm water there when the city should have built other storm sewers to divert the water elsewhere. Id.
The city's director of public works testified that a fifty-year rain event caused the erosion and that the erosion was a natural occurrence. Id. at 532-33.
The homeowners' expert testified "It is not normal erosion however, which has caused the loss of 10 feet of the Dalon's backyard, but rather, the extreme, rapid erosion . . . ." Id. at 533.
The homeowners asserted inverse condemnation alleging the failure to maintain the creek bank "as well as approval of upstream development resulted in increased drainage along" the creek resulting in the increased erosion. Id. at 538.
The Court analyzed the homeowners' inverse condemnation claim stating it required a showing that "the State intentionally performed certain acts." Id.
The Court concluded the homeowners' claim that the storm sewer system's designed discharge of rainwater runoff into the creek merely stated a claim of negligence against the city and did not raise a fact issue regarding "an intentional action by a city official" to take the creek bank. Id.