Justice JOHNSON delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice WAINWRIGHT, Justice MEDINA, Justice GREEN, Justice WILLETT, Justice GUZMAN, and Justice LEHRMANN joined.
This appeal involves the issue of whether the trial court had jurisdiction over a claim against the Texas Parks and Wildlife Department to determine whether the Salt Fork of the Red River is navigable. The Sawyer Trust sued the Department for a declaratory judgment that the river is not navigable and that the Trust owns the riverbed where it crosses the Trust's property in Donley County. The Department filed a plea to the jurisdiction based on sovereign immunity. After the Department took the position that the river was navigable—and the State therefore owned the riverbed—the Trust added a constitutional takings claim. The trial court denied the Department's plea and the court of appeals affirmed.
We hold that the Trust's claims for a declaratory judgment are barred by sovereign immunity and the Trust cannot assert a takings claim under these circumstances. We also hold, however, that the Trust is entitled to replead and attempt to assert an ultra vires claim against state officials if it chooses to do so. We reverse the court of appeals' judgment and remand the case to the trial court for further proceedings.
The State of Texas owns the soil underlying navigable streams.
The Salt Fork of the Red River crosses property in Donley County owned by the Sawyer Trust. The Trust had an opportunity to sell sand and gravel from the streambed but was concerned that the Department would seek control of the property and interfere with the sale. See TEX. PARKS & WILD.CODE § 86.002(a); 31 TEX. ADMIN. CODE §§ 69.104, 69.114(a). The Trust sued the Department
Pursuant to agreement of the parties, and at the urging of the trial court, a surveyor from the General Land Office visited the streambed on the Trust property. He then filed a letter with the trial court setting out that his visit was "for the purpose of determining if the stream was statutorily navigable." He concluded that the Salt Fork was navigable at the point where he measured it on the Trust's property. The Trust then amended its pleadings and added an allegation that the State's claim of navigability constituted a taking of its property under the federal and Texas Constitutions. The trial court denied the Department's plea to the jurisdiction.
The court of appeals affirmed. It held that a declaratory judgment action seeking the determination of a disputed fact issue—the navigability of the stream—is not a suit against the State that implicates sovereign immunity. 354 S.W.3d 489. The court of appeals concluded that although the declaratory action "may have the collateral consequence of resolving a factual dispute that impacts a claim being made by the State, it is not an action that is in essence one for the recovery of money from the State or for determination of title; therefore, legislative permission to prosecute is unnecessary." Id. at 490.
The Department no longer urges its ripeness challenge to the Trust's claim: it maintains that the Salt Fork is navigable. Nevertheless, the Department asserts that sovereign immunity deprived the trial court of jurisdiction because (1) there is no general right to sue a State entity for a declaration of rights—such relief is available only in an ultra vires claim against a state official; (2) determination of whether a stream is navigable constitutes a determination of the State's title to property and sovereign immunity bars a suit that would have such an effect; and (3) the Trust's pleadings fail to state a constitutional takings claim. The Trust counters that the trial court had jurisdiction because the suit is (1) a permissible declaratory judgment action under the Texas Constitution; (2) an authorized declaratory judgment action to determine a boundary line as opposed to a trespass to try title suit to determine ownership rights; and (3) a constitutional takings claim because
A. Standard of Review
Whether a trial court has jurisdiction is a question of law subject to de novo review. See Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).
Generally, sovereign immunity deprives a trial court of jurisdiction over a lawsuit in which a party has sued the State or a state agency unless the Legislature has consented to suit. See, e.g., Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). But when the State or a state agency has taken a person's property for public use, the State's consent to suit is not required; the Constitution grants the person consent to a suit for compensation. See, e.g., State v. Holland, 221 S.W.3d 639, 643 (Tex.2007); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980).
B. Declaratory Relief
The Declaratory Judgments Act (DJA) generally permits a person who is interested in a deed, or whose rights, status, or other legal relations are affected by a statute, to obtain a declaration of rights, status, or other legal relations thereunder. TEX. CIV. PRAC. & REM.CODE § 37.004(a). The Department urges, however, that there is no general right to sue a state agency for a declaration of rights. We agree.
1. Actions Against State Entities
While the DJA waives sovereign immunity for certain claims, it is not a general waiver of sovereign immunity. See id. § 37.006(b); City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6 (Tex. 2009) (noting that the DJA waives immunity for claims challenging the validity of ordinances or statutes); IT-Davy, 74 S.W.3d at 855-56. But generally, the DJA does not alter a trial court's jurisdiction. IT-Davy, 74 S.W.3d at 855. Rather, the DJA is "merely a procedural device for deciding cases already within a court's jurisdiction." Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). And a litigant's couching its requested relief in terms of declaratory relief does not alter the underlying nature of the suit. Heinrich, 284 S.W.3d at 370-71; IT-Davy, 74 S.W.3d at 855. Consequently, sovereign immunity will bar an otherwise proper DJA claim that has the effect of establishing a right to relief against the State for which the Legislature has not waived sovereign immunity. See City of Houston v. Williams, 216 S.W.3d 827, 828-29 (Tex.2007) (per curiam).
The Trust argues that sovereign immunity does not apply because the Department acted outside its legal authority when it asserted the Salt Fork was navigable and the State owned the streambed. We disagree—the Department is immune from suit.
The rule remains as it was set out in State v. Lain:
162 Tex. 549, 349 S.W.2d 579, 582 (1961). Neither Heinrich nor the DJA creates an exception to a state agency's immunity in
2. Contesting Title with the State
Generally, a trespass to try title claim is the exclusive method in Texas for adjudicating disputed claims of title to real property. See TEX. PROP.CODE § 22.001(a) ("A trespass to try title action is the method of determining title to lands, tenements, or other real property."); Martin v. Amerman, 133 S.W.3d 262, 267 (Tex.2004). "Real property" generally includes the sand and gravel on a tract of land, see, e.g., Moser v. U.S. Steel Corp., 676 S.W.2d 99, 102 (Tex.1984), and in this case the Department does not claim otherwise.
In 2007, the Texas Legislature added an exception to the rule that a trespass to try title claim is the exclusive method for adjudicating disputed claims of title to real property. Section 37.004(c) of the Texas Civil Practice and Remedies Code provides that, notwithstanding the trespass to try title statute, a person interested under a deed, will, written contract, or other writings constituting a contract may obtain a determination of title based on a property boundary line "when the sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties." TEX. CIV. PRAC. & REM.CODE § 37.004(c); see TEX. PROP.CODE § 22.001(a). The Trust argues that the claims in this case constitute a boundary dispute and that "new section 37.004(c) can easily and logically be construed as a legislative waiver of any sovereign immunity that has ever in the past impeded private titleholders' efforts to litigate their boundary disputes against the State." We disagree that the claims here constitute a boundary dispute.
The central test for determining jurisdiction is whether the "real substance" of the plaintiff's claims falls within the scope of a waiver of immunity from suit. See, e.g., Dallas County Mental Health & Retardation v. Bossley, 968 S.W.2d 339, 343-44 (Tex.1998). The real substance of the Trust's pleadings, evidence, and arguments is that the Salt Fork is not navigable and the State has no ownership rights in its bed. Its allegations are summarized in its live pleading in the section entitled "Causes of Action Against Defendants":
Under the "Relief Sought" section of its pleadings, the Trust sought a declaratory judgment that no navigable stream is present on its property, despite the Department's contention to the contrary, and injunctive relief precluding the Department from entering the Trust's property in an attempt to limit, control, or interfere with the removal of sand and gravel from the Trust's property.
We need not decide whether section 37.004(c) effects a waiver of the State's immunity from suit for boundary disputes because this controversy is not over the boundary between State-owned land and Trust-owned land; rather it is over whether the State owns any land at all. The case involves rival claims to ownership of the entire streambed. Consequently, the Trust's suit in substance is one to determine
The Trust also urges that it may maintain its suit against the Department because whether a stream is navigable is a judicial determination. It cites to State v. Bradford, in which this Court stated,
121 Tex. 515, 50 S.W.2d 1065, 1070 (1932) (citations omitted). We agree with the Trust that the issue is one for judicial determination. But as we discuss later in greater detail, such a claim is an ultra vires one that must be brought against a governmental official and not the State.
Here the Department, as a defendant, has asserted its sovereign immunity and the Trust has not shown any exceptions to or waiver of it. While courts may determine questions of navigability when they have jurisdiction, a navigability dispute does not comprise an exception to or waiver of sovereign immunity and vest jurisdiction in the courts when the State or a state agency is sued.
In sum, notwithstanding the manner in which they are pleaded, the Trust's claims for declaratory relief are claims against the Department to determine title to the bed of the Salt Fork and are barred by sovereign immunity. See Lain, 349 S.W.2d at 582.
C. Takings Claim
The Trust also asserts that a waiver of immunity is not required because this is a suit based on a constitutional taking. The Trust argues that a taking has occurred because the Department's claim of ownership unreasonably interferes with the Trust's rights to use and enjoy its property. The Department urges that the Trust's claim is not a valid takings claim because the Trust seeks only declaratory and injunctive relief based on the dispute over title to the bed of the Salt Fork—a dispute that will be determined by whether the Salt Fork is navigable—but which is nothing more than a title dispute nonetheless.
We agree with the Department. Although the Trust referenced the United States and Texas Constitutions, it did not assert a valid takings claim giving the trial court jurisdiction over its claim.
The Texas Constitution provides that "[n]o person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person." TEX. CONST. art. I, § 17. Likewise, the United States Constitution provides "nor shall private property be taken for public use, without just compensation." U.S. CONST. amend. V. Sovereign immunity does not shield the State from claims based on unconstitutional takings of property. See, e.g., Holland, 221 S.W.3d at 643; Steele, 603 S.W.2d at 791. Whether the government's actions are sufficient to constitute a taking is a question of law. E.g., Gen. Servs. Comm'n v. Little-TexInsulation Co., 39 S.W.3d 591, 598 (Tex.2001).
To establish a takings claim, the claimant must seek compensation because
The premise for a constitutional takings cause of action is that one person should not have to absorb the cost of his property being put to a public use unless he consents. See Steele, 603 S.W.2d at 789. In contrast to a trespass to try title claim, which quiets title and the right of possession to property, a successful takings claim entitles a claimant to compensation, not to possession of the property. See TEX. CONST. art. I, § 17 ("No person's property shall be taken . . . without adequate compensation being made. . . .") (emphasis added); City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex.1995) (stating that section 17 of the Texas Constitution waives immunity only when a claimant is seeking compensation); cf. Martin, 133 S.W.3d at 264-65 ("[a] trespass to try title action is the method of determining title to lands, tenements, or other real property." (quoting TEX. PROP.CODE § 22.001)).
In this case, the Trust asserted in its amended pleadings that through the Department's contention that a navigable stream exists on the Trust's property, the Department wrongfully claimed title to part of the Trust's property. The only relief sought by the Trust was declaratory and injunctive relief to effectively determine its ownership of and right to possess the bed of the Salt Fork. The Trust did not seek compensation—the only relief available in a takings claim—nor did it seek a declaration that the Department had taken Trust property for public use. See Bouillion, 896 S.W.2d at 149. The difference between a takings claim and a trespass to try title claim was clearly articulated by the court of appeals in Porretto v. Patterson:
251 S.W.3d 701, 708 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (citations omitted).
Here, the Department has merely identified the streambed as belonging to the State because the State asserts the Salt Fork is navigable. See TEX. NAT. RES.CODE § 21.001(3); TEX. PARKS & WILD.CODE § 1.011(c); TEX. WATER CODE § 11.021; Bradford, 50 S.W.2d at 1068-69. The Trust stated in its amended pleadings that the State "wrongfully claim[ed] title" to the streambed, resting its assertion on the Department's contention that a navigable stream exists on the property. It is undisputed that the Department has not taken action to apply materials in the streambed to public use by actions such as selling them. Cf. Porretto, 251 S.W.3d 701 (takings claim was based on the State's leasing of property); State v. BP Am. Prod., 290 S.W.3d 345 (Tex.App.-Austin 2009, pet. denied) (takings claim was based on the State's grant of an oil and gas lease); and Koch v. Gen. Land Office, 273 S.W.3d 451
In a case such as the one before us, where the question of who owns the property is the only issue and title and possession are the only available remedies, the record and the briefs show conclusively that the Trust does not have a constitutional takings claim for compensation. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007) (holding that a remand to permit a claimant to replead would serve no legitimate purpose when the underlying claim was a breach of contract claim and immunity could not be overcome). If the Trust owns the property, it is not entitled to compensation for a taking. And if the State owns the property, the Trust is not entitled to compensation because nothing was taken from it. The Trust confirms the foregoing conclusions when it says in this Court that it "does not seek money damages" and "does not seek to establish liability."
Generally, a party is not entitled to relief it does not request. State v. Brown, 262 S.W.3d 365, 370 (Tex.2008). And just as the Trust's suit is not one to determine the boundary between land owned by the State and land owned by the Trust, it is not a takings claim. Allowing the Trust's claim of title to be adjudicated by means of a takings claim would allow claimants to circumvent the State's sovereign immunity by creatively pleading such claims. Creative pleading cannot be used to effect the loss or waiver of the State's sovereign immunity. See IT-Davy, 74 S.W.3d at 856.
2. Response to the Dissent
The dissent would allow the Trust to pursue a takings claim even though the Trust has no claim for compensation. It would do so because,
354 S.W.3d at 406 (Hecht, J., dissenting). But even recognizing the practical effects of statutory damages and civil and criminal penalties for taking state-owned property still does not mean that the government has taken property belonging to the Trust. Under the circumstances, we fail to see how the Trust's claim is or can be for compensation, which is the only constitutional remedy for a takings claim.
Further, it seems that the dissent has mingled takings claims and ordinary claims for which legislative consent is required by its statement that "[l]egislative consent to sue for title is thus made virtually absolute." Legislative consent is not
D. Ultra Vires Claim
The Trust asserts that if the Court determines the suit cannot proceed against the Department, the Court should remand the case to permit it to add state actors as parties and pursue an ultra vires claim. The Department urges that the suit should be dismissed because there is no basis for arguing that a department official has acted ultra vires.
A suit against a state official for acting outside his authority is not barred by sovereign immunity. See Heinrich, 284 S.W.3d at 370-74. While suits to try the State's title are barred by immunity, in some instances a party may maintain a trespass to try title action against governmental officials acting in their official capacities. See Lain, 349 S.W.2d at 581. In Heinrich, the Court affirmed the rule that suits for declaratory or injunctive relief against a state official to compel compliance with statutory or constitutional provisions are not suits against the State. See Heinrich, 284 S.W.3d at 370-74. If a government official acting in his official capacity possesses property without authority, then possession is not legally that of the sovereign. Under such circumstances, a defendant official's claim that title or possession is on behalf of the State will not bar the suit. See Lain, 349 S.W.2d at 581-83. A suit to recover possession of property unlawfully claimed by a state official is essentially a suit to compel a state official to act within the officer's statutory or constitutional authority, and the remedy of compelling return of land illegally held is prospective in nature.
The State urges that evidence before the trial court showed a state surveyor had examined the river and determined it to be navigable and that "[g]iven the Department's express statutory authority to exercise the State's right of ownership over this sand and gravel, there is simply no basis for arguing that a department official has acted ultra vires." We disagree.
The Trust and the dissent point out that the Department is in a unique position. It has sovereign immunity from the Trust's suit to determine title to the streambed. Though the Trust strongly disagrees with the Department's claim of navigability, the Trust seemingly has little recourse if the Department's position that the stream is
In Lain, we set out the manner in which trespass to try title claims against government officials should proceed and the manner of relief that should be granted when the officials file pleas to the jurisdiction:
Lain, 349 S.W.2d at 582.
The Department has the authority to make determinations on behalf of the State as to navigability of streams and to exercise the State's rights over navigable streambeds. Nevertheless, its pronouncement that a stream is navigable is not conclusive of the question. This Court established long ago that the question of navigability is, at bottom, a judicial one. Bradford, 50 S.W.2d at 1070.
Here it is undisputed that the part of the streambed in question and claimed by the State to be navigable lies on land owned by the Trust. If the Salt Fork is not navigable, the Trust owns the bed. We see no good reason that the process and principles we set out long ago in Lain should not apply. The Trust should be given an opportunity to amend and cure the pleading and party defects, if it chooses to do so, and have the suit proceed against the governmental actors laying claim to the streambed. See Koseoglu, 233 S.W.3d at 840; Lain, 349 S.W.2d at 582.
We reverse the judgment of the court of appeals. The case is remanded to the trial court for further proceedings in accordance with this opinion.
Chief Justice JEFFERSON filed a concurring opinion, in which Justice MEDINA, Justice WILLETT, and Justice GUZMAN joined.
Justice HECHT filed an opinion concurring in part and dissenting in part.
Chief Justice JEFFERSON, joined by Justice MEDINA, Justice WILLETT, and Justice GUZMAN, concurring.
I join the Court's opinion but offer a few additional observations about the dissent.
The dissent accurately notes that Heinrich's ultra vires rule does not apply if the government official's acts were discretionary. The dissent then laments that allowing an ultra vires claim to determine navigability goes beyond Heinrich and "abolish[es] immunity altogether." 354 S.W.3d at 399. This incorrectly presumes, however, that a state official's assertion of title is a discretionary act. But navigability (which, here, determines title) "is not a question left to the discretion and judgment of ministerial officers." Bradford, 50 S.W.2d at 1070. Rather, "[u]nder the law, those officers were and are not clothed with the power to settle questions of navigability of streams, but in view of the very nature and importance of the matter, for obvious reasons, it is a question for judicial determination." Id. (emphasis added).
In Lain, we made clear that a government actor is not immune from a trespass-to-try-title suit, and we described how to bring such a claim. State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 581-82 (1961) ("One who takes possession of another's land without legal right is no less a trespasser because he is a state official or
The dissent has conjured an unorthodox takings claim based on the civil and criminal penalties associated with appropriating the State's sand and gravel. There are several problems with this approach. First, if all the government has done is claim title,
Second, authorizing a takings claim to determine title, when the Department has merely asserted ownership, evades statutory trespass-to-try-title requirements. A trespass-to-try-title suit is generally the only way to resolve contested title claims, even when its requirements have sometimes produced harsh results. TEX. PROP. CODE § 22.001(a); Martin v. Amerman, 133 S.W.3d 262, 265 (Tex.2004). Whether such strictures are good policy
Third, the dissent would hold that a takings claim is viable when the government imposes severe penalties for an individual's legitimate assertion of title. At what point are penalties so severe that a takings action is authorized? A proliferation of lawsuits on "severity" is the predictable consequence of the dissent's approach. Even if the severity of a financial penalty could be defined, rarely will a case arise in which a criminal sanction does not accompany the theft of state property. And even if there were such a case, a landowner would be forced to sell natural resources at its peril, subject to a conversion claim the State might bring. How can a party manage its property without knowing whether it will be subject to liability for doing so?
The issue here is not whether the Department has taken Trust property but who owns the property in the first place. Answering that question will resolve this case, and under longstanding precedent, an ultra vires action—not a takings claim—is the appropriate vehicle for doing so.
Justice HECHT, concurring in part and dissenting in part.
By today's decision, the Court abolishes the State's immunity from suit to determine title to real property. All the plaintiff must do is name some state official as the defendant. The suit proceeds as against a private defendant. Of course, naming a state official instead of the State is a complete fiction. For all practical purposes, the suit is against the State. If the plaintiffs claim is superior to the State's, as advocated by the state official, the plaintiff wins, and the State is bound by the judgment.
In the Court's view, repeated in the concurring opinion, the State has never been immune from suit over real property, having announced that ruling fifty years ago in State v. Lain.
Moreover, the courts of appeals have been divided in their view of Lain, with one reading that decision narrowly,
It is difficult to square the Court's broad reading of Lain with its much narrower holding recently in City of El Paso v. Heinrich.
Today—and for the first time—the Court allows a plaintiff to sue a government official for title to property, and recover in practical effect against the government itself, proving no more than would be required in a suit against a private defendant. The only remaining immunity from suit is in name only: the government cannot be sued, but its actors can. Why this should be—or as the Court believes, should always have been—the rule for title suits but not for suits for pension benefits, like Heinrich, for example, is not clear. Why the government's immunity from suit in tort and contract should be absolute, subject only to statutory waiver, its immunity from suit for the unauthorized actions of its agents should be subject to the narrow Heinrich exception, and its immunity from suit over title to real property should be nonexistent is a puzzle to which the Court is strangely oblivious.
I agree with the Court that respondent's declaratory judgment claim fails. In my view, the law affords a practical solution for settling title disputes with the government that preserves immunity while providing a resolution of serious issues. When the government is met with a claim of ownership contrary to its own that it considers serious, it can sue for a resolution, thus waiving immunity. It would be required to sue to protect its own interests. When the government considers its own possible claim not worth asserting, the individual claimant has the property. But when the government claims immunity from suit over title, refuses to sue for a resolution of the dispute, and imposes criminal penalties on the individual claimant for treating the property as his own, the government has removed itself from the proper scope of immunity. In that situation, I would permit the individual claimant to sue for a taking, for which the government has no immunity.
At bottom, I would allow the government to preserve its immunity from suit
The parties agree that if the Salt Fork of the Red River is "navigable", a term that by statute refers to "a stream which retains an average width of 30 feet from the mouth up",
Determining whether the Salt Fork is "navigable" is not an easy matter. It rises in the Texas Panhandle near Amarillo and flows southeastward some fifty miles to Greenbelt Lake, just north of Clarendon, then extends another hundred miles or so across Texas and Oklahoma to its mouth in the Prairie Dog Town Fork of the Red River.
In 2006, the Trust contracted for the mining of sand and gravel from the dry streambed. But removal of such materials from the bed of a navigable stream requires a $1,200 permit
I agree with the Court that the Trust's suit against the Department to determine title to the bed of the Salt Fork is barred by immunity.
I also agree that immunity would not bar an ultra vires action by the Trust against an appropriate official for asserting the State's ownership of the bed contrary to law. Again, Lain holds:
We recently reconfirmed in City of El Paso v. Heinrich that ultra vires actions are permissible,
Eventually, the Supreme Court "cut through the tangle" of its decisions and applied to land disputes the general rule it had announced for officer suits in Larson v. Domestic & Foreign Corp.:
The difficulty with respect to land disputes evaporated with Congress' passage of the Quiet Title Act of 1972,
The Texas Legislature has not acted similarly to free us of the continuing struggle to determine when government officers may be sued though the government is immune. We held in City of El Paso v. Heinrich that an ultra vires suit is permitted when a government official has acted contrary to a statute requiring him to "perform in a certain way, leaving no room for discretion".
The Department contends that there are only two ways for the Trust to challenge the State's assertion of ownership of the Salt Fork bed. One is for the Trust to seek permission from the Legislature to sue.
The Trust's only other alternative, the Department contends, is to proceed with its mining plans and risk the consequences. This is not simply a dare. The Department might reconsider its claim of ownership or otherwise decide to take no action against the Trust. Or the Department might sue for damages, in which case it would not be immune from the Trust's counterclaim to determine title.
But conversion would not be the only action available to the Department, nor would the Trust's risk be limited to common-law damages. By statute, a person who removes sand and gravel belonging to the State without a permit may also be liable for consequential damages
The Trust argues for a third alternative: a suit for a taking of its property without compensation in violation of article I, section 17 of the Texas Constitution. The Department acknowledges that it is not immune from such suits but argues that the Trust cannot sue for a taking in this situation. The Court agrees for what I take to be three reasons.
First, the Court notes that "the State has not expressed an intent to take property belonging to the Trust [but] . . . has merely identified the streambed as belonging to the State".
Second, the Court states that "[t]he Trust's suit is an action to determine whether it owns the streambed, not one for compensation".
Third, the Court argues that "[a]llowing the Trust's claim of title to be adjudicated by means of a takings claim would sanction claimants' circumventing the State's sovereign immunity by . . . [c]reative pleading. . . ."
Not only does the Court offer no persuasive reason for holding that the Trust has no takings claim,
The court noted that two other courts had held that a dispute over the ownership of property does not preclude a suit for its taking.
In Koch, the State actually removed the limestone, while here, the State has only asserted that the Trust cannot remove sand and gravel without a permit. But in both cases, the State claims ownership of the property in issue. A permit to remove sand and gravel is required, not for the purpose of regulating a landowner's use of his own property, but to protect the State's right to its property. The imposition of a royalty in connection with the permit is based on the State's ownership of the material being mined. The State claims the right to remove sand and gravel from the Trust ranch, just as it removed limestone from Koch's property, only it has not yet chosen to exercise that right. At bottom, this distinction in the two cases is one without a difference.
In my view, an action for a constitutionally compensable taking of property is not precluded merely by a dispute between the claimant and the government over ownership of the property. To hold otherwise would allow the government to avoid its constitutional obligation whenever it chose to do so. Nor do I think a takings action can be precluded when the government's belief in its right to the property is colorable or even reasonable. Such a rule would depreciate the constitutional right too much. On the other hand, to hold that the government's claim to property may always be challenged in a takings action would vitiate the rule of Lain, that the government is immune from such suits, and abolish any need for ultra vires actions. It is not necessary to go that far in this case.
The dilemma presented here results not from the State's assertion of immunity as a shield to prevent being drawn into litigation, but its use as a sword to discourage all claims to streambeds. By imposing statutory damages and civil and criminal penalties for mining a streambed without a permit, the State has all but prohibited a claimant from acting on a right asserted in good faith and risking the consequences in an action brought by the State. Legislative consent to sue for title is thus made virtually absolute. The effect is to shift authority for determining whether the State has taken a person's property without compensation from the Judicial Department to the Legislative Department, in violation of the fundamental principle that it is for the courts to decide what the
* * *
For these reasons, I would hold that the Trust may assert a claim for compensation against the Department under article I, section 17 of the Constitution. From the Court's decision to waive the State's immunity completely, I respectfully dissent.
W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 843 (1958) (emphasis added) (citations omitted).