so called doesn't apply in the state of texas and is not a recognized doctrine in texas phrase that's in third that the takings claim under nine hundred eighty three was our view of the summary judgment that the property in question there's a hundred and twenty two acres of land in the city of victoria downtown that is discharged all the stormwater  clients backyard this comes from seventy two storm drains within the city and it's two miles of two miles of sewer pipe before it reaches my client's land to be discharged and although in the history of the property that there's discussion about the philips did which was dug by the city the phillips ditch was only one fourth the size of the largest existing orbit tiriel which is thirty six  your honor the record indicates that there's been a continuing increased up flow over time it's just increased in there's not like on it this time it got really bad because some underground pipe that there's been a substantial increase in the size of the canyon that's been cut in mr redbirds backyard just since two thousand and ten to the degree that the actual pattern at the bottom of his change when the philip stitch was pat was adopted the city's shows that along the four philip stage when it was put in there was hardly any street i mean there are streets but hardly any buildings but since that time  the city is filled up it's become more dense the affidavit of keith redmond shows that the city has become more dns there's been less impervious cover and of course what is also true is  this our evidence shows it was a natural waterway no that's not to say there wasn't some flow that came across the land but to get this whole entire land you have to bring the water would have to have brought the water uphill and the evidence shows that these pipes are now billing through through heels or through elevation changes to reach our client's property with this increased flow is the confort and this i should know this but is it actually on your client's property or is it part that was dated to what way are segregated off what happens is the pipe the city's pipe comes to my client's property and it's a it discharges the water in then when it exits my client's backyard it goes back into another five pipe of the cities and then continues on so my city my client's property is the only private property in a somehow gets back in the pipe on the other side of the property goes back into the city pipe under the river i mean under the under the road in continue continues on to be in chile if it is there evidence in the record that all the go back to the other pipe twenty fifth on the property of and yes your honor is perfect the city employee even told my client that we were basically a filtering system for the city sewer to clean up the property before it goes down to the guadalupe river and in an page six hundred of the a record on appeal is where the first it first appears with its attachments and it shows that so the it all in said that he would not even let his crews go back in the client's back yard and down the bill because the last time was at dural smith your honor because the last time he sent two guys they own he had to send him to the doctor for poison ivy poisoning and he didn't want to be thought it was too dangerous for his work crews to go back to my client's backyard to to do that and of course the nature of this gets worse and worse to have to david that for example the the growth of the canyon is evidenced by the fact that there was one tree that was in the middle of the one part of the canyon but it was a small tree where the bowl was growing so you knew it had to actually have it wouldn't grow there in the middle it had to be grown on the bank washed away everything washed away and so we have the erosion that's w clean of triage but of course if it's nearly impossible to go in there and get the trash cleaned up and all my client is asking for is to connect the pipes in to have this underground just like it tile underneath it to support the field so he was asking for it to support the c s in obviously the city didn't live rely upon that represent tell you shouldn't you need a way to create some sort of easement because when my client went to the city attorney david were planned inserted but those failed likewise because that doctrine is based upon and the cess of the of a prior use of a grant tor when the grant tor is granting something that the grant tories previously used see the triangle it is an even can tie in the drainage portion all that was was simply to provide a quick claim to the city so that the city could put a street in are have title to the street because previously it wasn't was simply to give roadway and without the roadway it wasn't there it would be a there's there's no easement at all but under the accommodation doctrine which is although recently applied in one gassing recently applied in groundwater that same doctrine in texas goes back to even a case filed in eight hundred fifty eight that the texas supreme court hailed where it said an easement owner and he's been owner can not unreasonably burden you are you urging still  pleading that it wasn't ripe for failure to exhaust before we were involved in the case as counsel the case went up on some statutory basis is to the texas court of appeals and we believe all things were exhausted but that hasn't been planned or brief that he was thinking the city had an easement and that because they had an easement they could do whatever they wanted to and based on comments just choose made in council chambers that for the record in the reporter's record i think his theory was basically that he didn't think he could tell the city that they needed to put something under ground he explained that he owned some property out in the country that has a creek by hadn't he gets a lot of debris an issue creek and the distinction though that we say is that unlike you i have the same situation with a creek at my property but the inside distinction is is worse and here is a filtering for the entire city as its whole storm water system of two miles comes flowing out of property everything's sucked out in the rate of flow is very high that we've got some naturally occurring thing it's being directed that way by the city that's it's different this year on an issue it wasn't and i don't and when i say it was a naturally occurring i'm sure there was something slightly lower but back in time all this property that straining was going drying somewhere else and going otherwise to the level of the river pretty even if there was an easement there could still be a taking clearly violate the duty of an easement holder to the dominant state the service they are fact issues in business to be sent back for that to be adjudicated or do you think you win on summary judgment on some of this your honor we think it should be which obviously would have increased the water flow across his backyard what if anything did who were the owner at the time do and protests do that your other then tell me once in the record about them the only thing in the record is that it was a permissive contrary which in texas is ten years and there's proof that it was the permissive in the early days and that and also it was disputed about the natural water ok thank you are on the record as triangular piece of property that we talked about it belong to mr red burns predecessor and interest at the time that it was transferred to the city it had an open ditch on it what happened was the street directly above was the city limits in the city completed the drainage project in the one nine hundred thirty s there was an open sixty inch pipe there the water flowed down through philip's kitchen across the property when mr brahman came in and put tiling in this kind of an ancient term but he actually put that put the sixty inch pipe in that flows underneath where the fence line is today and we found where the city needed the triangular section for was there was open ditch between the intake onto mr rahman's property and where it where it came out of the city's property in the city but taking that triangular portion of property it put in a water flowed openly and curved into it and between two pieces of property it was known as philips dish mr brahman purchased the property on the other side of the damage and then petitioned the city let me put tiling in here  to support a fence across it on both sides of my property so on the bottom side there's bluff road and blow for of has a sixty inch pipe going out of it but what mr brahman  was at intake and approximately a thirty degree term into his property that was that was covered over so he could put a fence across the front of not what's causing the debris on his property that's time of the vents on the other part whatever debris is flowing across his property is likely flowing through the city pipes down to the property so that's how disco it's a city pipe is flowing putting debris on its property it's a city it's coming to the city pipes that's ok but it's not the city's debris that's going into those pipes and people throwing things on the side of the road or what have you it's garbage it's not a sick city act that is causing that debris to go onto the property and what's retaining it on the property as they've allowed rush to grow up in just cities in charge of the roads in the or else the county is or some some one the three it's certainly not the know your honor ok but i can say that there was never an express easement across the property this was a drainage ditch it's been there forever it never really became a problem until we got up with five tons of concrete poured into the the outlet of the of the pike that would have threatened everybody upstream with that and that's where this thing came to a head of what it was and see what is in the record concerning why the city refused to come in and connect it to call work and have an underground pipe the city could come in and connect the two culverts and put it underground pipe in there but it's perhaps a by the constitution of state of texas from spending public monies to benefit a private lender and that's what he wants us to do or you're saying that none of the other pipes that carry the storm drain own private property think it's all inside of under the pipe that comes down from downtown that that flows into this is right down the middle of the street down mark north street where philips where they originally drained the project was done i don't know where all the pipes are but i'm sure they're all with him right of ways the city has it has an interest in but this is a mature drainage area that has been this way since the one nine hundred forty s there been no pipes out of one of the city of kwara right of way and then put in some  we could do that we could do that by condemnation but that is one way to resolve this and another way is if there's that taking scase it could be resolved through that it could be resolved through through taking each case but we don't believe there's a a takings case here donna well what did judge q say about the take you could have the federal taking his case even if you have to exhaust the state room and he said the fact that that was resolved in that he take nothing that he said take nothing on it don't say on it just in general you're saying it's wrapped up in the overall ruling on the case that he doesn't address any of the legal arguments about the taking sport i don't believe land or did he exhaust the state remedies so that he could bring up a federal taking strike well with a broader lead the first time we had to take it claims after we came back down from the supreme court everything had been dismissed out of the lawsuit except for for one issue we brought a takings claim under under one thousand three important thing to note here that in order to have a takings claim the city has to do something they have to either take it by physically taking a property which didn't happen here the city hasn't been on his property since the one nine hundred forty s or they have to regulatory take the property in this case there's been way what you mean the city hadn't been on the property understand from the council who plain approved the city and threatened him at least twice with fined for not keeping his property clean i don't believe that's actually in the record anywhere but the city wanted to come into the property to see about trimming out the trees and things in the ditch to allow the water to go ahead and flow through after redburn made his complaint the original lawsuit that was brought was against city employees trying to prevent them from not possible if yes people did they told him that his people have gotten troy's and i be on his property those are government agents those are his people that they brought onto the property from what i understand that i study said it was the city people and that limitations is there and i argued that the city had to take some action in order to have the taking ok in this case there's been no new piping added there's been no new property that's added hundred forty s i think the strain is this drainage here has been completed if you look at the affidavit of mr gill he specifically says since two thousand there has been no capital of any instance where they place pipes under private property to facilitate that drainage well now you saying you don't know what course were constrained by the record so what does the record say the record say anything about the fact that additional pipes have been linked in like with new construction of housing so that that's actually increasing substantially the flow across his property because  pipes that would have been added to that there's been no new area added to that no city no no private person has connected their their system to the city pipe absolutely not this is a storm drain this is not berman recognized the city had an interest in the us dead because they were draining the streets this this system had already been in place and he goes and asked the city for permission to put t particular time he says i'm going to go ahead and put this tile again and i'm going to redirect that water across my property when i do this and i'll take responsibility for any damage to this property that occurred i hadn't hea the in the in the know you're wrong and i said damage to my property that's correct and at that point he had purchased property on both sides of the ditch from the fence the fence didn't cause the phillips ditch all the trees and brush that you see in the photographs that are in the record showing how to how clogged this thing is but there's no there's no increase in flow that's attributable to the city and it's got to be a city act to be a taking well i didn't i didn't brown is it barnum or burn or the car owner who is dealing with the city about this ditch i don't see where he said he was going to direct the flow around anything he just said i want to put a fence around my property and to do that i have to go across your your drainage ditch or whatever you call it and i will put tile down to make sure that you know that there's oh man or something like that you can say i'm directing the water different i did it he didn't say that but the tiling that he put in was a sixty inch pipe it wasn't just heil laid across the ground he put a sixty inch pipe from the ditch where it was at the edge of his property into his property so that he could fill in with dirt to put the fence i'm not sure i saw that and the parts of the record that have been reproduced f sense reason because if you put the nozzle down on the ground wherever the nozzles pointed that's where the water is going to go and he put the nozzle on the ground so the speak the second important reason here is that the city hasn't taken any action to increase the water flow if there's been any impervious cover that's been added and i don't dispute that there has it's been through private development it's not developed better streets more concrete  there has been no concrete added since two thousand there been no new pipes put in since two thousand there's been no additional area put into this since two thousand you say never suggesting that a master  predecessor had not done whatever he did that the water wouldn't have gone through this properly it would have gone somewhere else and i right now i think you have gone through that ditch no matter what i think that ditch has been there a preexisting to the hundred thirty s to a project but our project ended at the street because that was in the city limits at that particular point and you had a culvert there had a culvert there you know i read the briefs i'm reading parts of the record your argument today about mr brennan put in a sixty inch pipe on each and such i just i don't recall reading that is that in the affidavit is it does the city say that in an affidavit in this or some sort of record evidence now because nobody's so why are you talking about it because hope then on the ground i've seen where the notes are i'm saying why are you talking about something that you're telling me is not even in the record i think it is in the record your honor but it's not on where is it in the record your honor not in the record so do you have some affidavit it says this point about mr brandon graham and doing this and how it affected the land on your epoch do you even have this in your brief mineral or water interest and the surface and you would have to if you're coming in to drill a person's property to recover the water or the minerals then you have to accommodate an existing use this ditches been there for ever and it pre pipes now it is true that the major pipes were built at when the bond program was going and i'm talking about the major pipes and those were all there and they didn't go beyond where they ended because there was a time when mr edmunds property was in the city limits like it is now it was on the edge of the city limits but in the record in it's partially in the affidavit of keith remember that also when judge hughes have us all go and find out what additional development improvements there had been we have instances of dozens and dozens and dozens of new development whole empty city blocks being filled up with parking where there was no in all since the talks about they had him for example he mentions trinity episcopal school or we expanded the parking lot those drawings begin in the those new drains begin in the parking lot in the water drains from the parking lot into the drains and comes into the city sewer system and is impervious cover has gone away is as you know i'm no judge hughes was thinking that where you had grass before that it would still run off but the rain will come on the grass and soak into the ground when you have concrete and in the records also show how in keith road burns second affidavit how there's been additional by city ordinances requirements to use  concrete instead to other forms of driveways or they have which is cause the flow to go in on this use the term sewage system but we're talking about the storm drain so you're saying for example this parking lot at this school has drains and those drains go into the storm drain system that's going into your client property issue rotter and well it is true that anything that would have been done on private property would have been done originally years and years ago that was part of the i'm sorry he had he had requested as he was considering how to rule he was asking the parties to bring additional evidence in terms of what new developments had occurred and we presented it from that and i will say again water cannot flow uphill and we have that in the affidavit that a lot of this water would have had to been flowing appeal in your honor the for clarity on the this trying to hold its exhibit of the river an a that it's actually exhibit f in when you look at the surveyors for the surveyor to compare page one into that shows where that triangle was in for this ditches you see it's very close but the choose to the west northwest of the triangle which is to the east in the south and it clearly had to do with completing the street and not have that having to do with with this man or with regarding to the accommodation doctor and one other item that that's not in our brief but the supreme court of texas talks about it a lot in the restatement third of property servitude section four point one about unreasonable are they as proud as the homestead law well i'm not i'm not about the constitutional vision that your politics has would prevent the city from putting up a for recess or