EVELYN V. KEYES, J., dissenting.

I respectfully dissent. I would reverse the order denying the plea to the jurisdiction of appellant, the City of Seabrook ("the City"), and render judgment that the City's jurisdictional plea be granted and that the underlying condemnation proceedings brought by the Port of Houston Authority ("the Port") against American Acryl NA, L.L.C. and American Acryl L.P. (together, "American") be dismissed.

Construction of Water Code in Section 62.106(d)

A. The Issue

This case turns on whether a navigation district's compliance with Water Code section 62.106(d) — which provides that "[n]o right of way may be condemned" by a navigation district without the prior consent of a city through which the right of way runs — is a jurisdictional prerequisite to a district court's adjudication of condemnation proceedings brought by the navigation district against a landowner whose property lies within a city.

Section 62.106, "Condemnation Proceedings," provides:

(a) The district may exercise the power of eminent domain to condemn and acquire the right-of-way over and

(1)for the improvement of any river, bay, creek, or stream;

(2)for the construction and maintenance of any canal or waterway; and

(3)for any and all purposes authorized by this chapter.

. . . .

(d) No right-of-way may be condemned through any part of an incorporated city or town without the consent of the lawful authorities of that city or town.

TEX. WATER CODE ANN. § 62.106(a), (d) (Vernon 2004) (emphasis added). The City views section 62.106(d)'s consent prerequisite as jurisdictional. Consequently, it argues that the trial court lacks subject-matter jurisdiction over the Port's condemnation action unless and until the Port obtains the City's consent. In contrast, the Port argues that the section's consent prerequisite is not jurisdictional, assuming that section 62.106(d) applies and controls (a position that the Port also contests and that the majority opinion does not reach).

As the majority recognizes, whether the City's consent to condemnation is a jurisdictional prerequisite determines, in turn, whether we have subject-matter jurisdiction over this interlocutory appeal. See Tex. Dep't of Crim. Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) (holding that "an interlocutory appeal cannot be taken from the denial of a plea to the jurisdiction that does not raise an issue that can be jurisdictional" and that appellate court must dismiss interlocutory appeal "when the issue raised [in the jurisdictional plea] cannot implicate subject matter jurisdiction"); accord Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 365 (Tex. 2004). Because I agree with the City that the consent provision in section 62.106(d) is jurisdictional and that, therefore, the trial court does not have jurisdiction to adjudicate the underlying condemnation proceedings against American, I would grant the City's plea to the jurisdiction and render judgment that the trial court dismiss the proceedings.

B. Jurisdictional Nature of Consent Provision in Section 62.106(d)

To prevail in condemnation proceedings, the condemning entity must prove that it has satisfied the various formal prerequisites necessary to proceed in the trial court. Whittington v. City of Austin, 174 S.W.3d 889, 896 (Tex.App.-Austin 2005, pet. denied); see also Hubenak v. San Jacinto Gas Transmission Co. ( Hubenak III), 141 S.W.3d 172, 182 (Tex. 2004). The courts are constrained to give effect to each of these requirements in construing the lawful powers conferred upon condemning entities, such as navigation districts, proceeding under section 62.106 of the Texas Water Code. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999); Wood v. Bird, 32 S.W.2d 271, 273 (Tex.Civ.App.-El Paso 1930, no writ.). Moreover, these requirements are mandatory. See Hubenak III, 141 S.W.3d at 180 (construing similar statutory provisions in section 21.012(b) of Texas Property Code as mandatory requirements upon commencement of condemnation proceeding); Brazos River Conservation Reclamation Dist. v. Costello, 135 Tex. 307, 143 S.W.2d 577, 580 (Tex. 1940) (holding that statute vested district court with jurisdiction to determine that every prerequisite of Constitution was fully complied with before property could be put to public use, i.e., that requirements were all mandatory).

Although all prerequisites to a condemnation suit are mandatory, not all are jurisdictional. See Hubenak III, 141 S.W.3d at 180 (construing "unable-to-agree" provision in Property Code as mandatory, but not jurisdictional); see also Whittington, 174 S.W.3d at 896 (observing that at least some prerequisites to exercise of eminent domain power are mandatory, but not jurisdictional). As the supreme court has pointed out, "The failure of a non-jurisdictional requirement mandated by statute may result in the loss of a claim, but that failure must be timely asserted and compliance can be waived." Loutzenhiser, 140 S.W.3d at 359. By contrast, "the failure of a jurisdictional requirement deprives the court of the power to act (other than to determine that it has no jurisdiction), and ever to have acted, as a matter of law." Id. If a petition does not allege jurisdictional facts, the plaintiffs suit is subject to dismissal for lack of subject-matter jurisdiction on a plea to the jurisdiction unless it is possible to amend the pleadings to confer jurisdiction. Martinez v. City of El Paso, 169 S.W.3d 488, 492 (Tex.App.-El Paso 2005, pet. denied).

I agree with the majority that, after Dubai Petroleum Co. v. Kazi the failure to comply with a non-jurisdictional statutory requirement — even a mandatory one — may result in the loss of a claim, but that such non-compliance does not deprive the trial court of subject-matter jurisdiction over that claim. See Kazi 12 S.W.3d 71, 76-77 (Tex. 2000); accord Loutzenhiser, 140 S.W.3d at 359. The issue here, however, is not the City's loss of a claim against the Port. The issue is the City's loss of its sovereign right to consent to the Port's exercise of the power of eminent domain within the City's boundaries — a right conferred upon it (and upon all incorporated cities and towns) by the Legislature as a restriction on navigation districts' exercise of the power of eminent domain under section 62.106 of the Water Code.

The essential distinction between this case and Hubenak III is that condemnation proceedings adjudicate the rights of landowners vis a vis governmental authorities exercising the power of eminent domain. They do not adjudicate the rights of sovereign entities vis a vis each other. Whether the City is entitled both to notice of the Port's intent to condemn property within its boundaries and the opportunity to refuse its consent to those condemnation proceedings is a question of law that goes to the scope of the power of eminent domain granted the Port by the Legislature, not to the propriety of the Port's exercise of that power against a landowner. Because I agree with the City that its consent is a jurisdictional condition precedent to the Port's exercise of the power of eminent domain, and because the Port failed to comply with that condition precedent, I would hold that the trial court lacks subject-matter jurisdiction over the Port's condemnation proceedings against American and that the proceeding must, therefore, be dismissed.

Since Kazi the Supreme Court of Texas has indicated that whether a statutory requirement is a jurisdictional or substantive bar depends on the Legislature's intent. See Loutzenhiser, 140 S.W.3d at 359; see also Kazi 12 S.W.3d at 76. Indeed, the dominant rule controlling the construction of a statute is to ascertain the intention of the Legislature expressed in the statute. Costello, 143 S.W.2d at 580 (construing statute authorizing condemnation of property by eminent domain). The inquiry begins with the statutory language, including whether any consequences for non-compliance are specified. Loutzenhiser, 140 S.W.3d at 359; see also Fitzgerald, 996 S.W.2d at 865-66(holding that court's primary goal in interpreting statute is to ascertain and to effectuate Legislature's intent and that, in ascertaining legislative intent, courts begin with statute's plain language). Another indicator of the Legislature's intent, which our Court has found particularly pertinent when the statute is silent on the consequences of non-compliance, is the statute's purpose. See Loutzenhiser, 140 S.W.3d. at 360; Harris County Emergency Servs. Dist. No. 1 v. Miller, 122 S.W.3d 218, 223 (Tex.App.-Houston [1st Dist.] 2003, no pet.). The statute may be read in connection with the constitutional provisions authorizing its enactment, and those constitutional provisions may be read into and considered a part of the statute. Costello, 143 S.W.2d at 580.

The power of eminent domain is a constitutional power essential to state governments and "inseparable from sovereignty," but its sphere is limited. United States v. Carmack, 329 U.S. 230, 236-38, 67 S.Ct. 252, 254-55, 91 L.Ed. 209 (1946); see U.S. CONST, amend. V; TEX. CONST, art. I, § 17. The power of eminent domain must be conferred either expressly or by necessary implication by the Legislature. Coastal States Gas Prod. Co. v. Pate, 158 Tex. 171, 309 S.W.2d 828, 831 (Tex. 1958); Saunders v. Titus County Fresh Water Supply Dist. No. 1, 847 S.W.2d 424, 427 (Tex.App.-Texarkana 1993, no writ); Wood, 32 S.W.2d at 273 (holding that right of eminent domain may not be exercised unless plain letter of law permits it). "[T]he legal requirements governing condemnation proceedings 'must be strictly followed.'" Whittington, 174 S.W.3d at 899 (quoting Horton v. Mills County, 468 S.W.2d 876, 878 (Tex.App. — Austin 1971, no writ)). Condemnation statutes need not, however, be given the narrowest meaning of which they are susceptible. Pate, 309 S.W.2d at 831. Rather, "[t]he language used by the Legislature may be accorded a full meaning that will carry out its manifest purpose and intention in enacting the statute, but the operation of the law will then be confined to cases which plainly fall within its terms as well as it spirit and purpose." Id. The constitutional and statutory limitations on a state entity's exercise of the power of eminent domain impliedly prohibit takings outside those limitations. See Whittington, 174 S.W.3d at 896 ("By requiring takings to be solely for public purposes, these limitations impliedly prohibit takings for private purposes or benefit.").

The City contends that the Port condemned American's land pursuant to section 62.106 of the Water Code. The purpose of section 62.106 is to provide for the exercise of the power of eminent domain by a navigation district operating under the provisions of article XVI, section 59 of the Texas Constitution, but within the confines of the power conferred on the district by section 62.106. Specifically, in section 62.106, the Texas Legislature has conferred the power on navigational districts "to condemn and acquire the right-of-way over and through any and all public and private land necessary" for the improvement of a "any river, bay, creek, or stream for the construction and maintenance of any canal or waterway," and for any other purpose authorized by Chapter 62 of the Water Code, "instituted under the direction of the [navigation and canal] commission and in the name of the district," subject to the condition that no right-of-way may be condemned under section 62.106 "through any part of an incorporated city or town without the consent of the lawful authorities of that city or town." TEX. WATER CODE ANN. §§ 62.001(definitions), 62.106(a),(b). The limits of that power are set out as prerequisites to the maintenance of condemnation proceedings. Under the plain language of section 62.106, no property within an incorporated city or town may be condemned by a navigation district except as necessary to effectuate the purposes set out in that section — and then only with the consent of the lawful authorities of the incorporated city or town within whose boundaries the land the district seeks to condemn lies. See id. § 62.106(d). A navigation district operating under article XVI, section 59 simply has no statutorily conferred authority to condemn land under section 62.106(d) without obtaining such consent.

Here, the Port did not obtain the City's consent to the condemnation proceedings against American. Therefore, if the consent prerequisite is jurisdictional, the proper remedy is to dismiss the Port's futile eminent-domain proceedings against American. If the City's consent is not jurisdictional, however, the Port can continue with its condemnation proceedings, and the City simply loses its chance to object to the Port's failure to obtain its consent because the statute provides no remedy for such a failure — unless, that is, the City learns of the proceedings, successfully intervenes and persuades the trial court that the proceedings should not go forward. In the latter case, the Port's failure to obtain the City's consent is a trivial matter without consequences; in the former, it is a matter of jurisdictional consequence.

The fact that the Legislature did not expressly provide a mechanism for cities to assert a right intended to protect then sovereignty within their borders confirms the conclusion that 62.106(d)'s consent prerequisite is jurisdictional, not that it is trivial. Cf. City of Laredo v. Almazan, 179 S.W.3d 132, 135 (Tex.App.-San Antonio 2005, no pet.) (concluding that statute was not jurisdictional because, among other things, it provided non-compliance penalty within statutory scheme). For example, in no case does either the Water Code or the Property Code provide an express means for cities to assert the right to consent to right-of-way condemnation through their territory. Generally speaking, the law contemplates that water districts seeking to condemn a right-of-way file a petition against the private property owner, not the non-owner city through whose territory the right-of-way will run. There is no express provision in the Water Code's or Property Code's condemnation provisions for making the affected, non-owner city a party to the condemnation proceeding.

Although this Court has no jurisdiction in this interlocutory appeal to determine whether the City had the right to intervene in this condemnation suit, and I do not purport to make such a determination, I observe that there is no mechanism in the Water Code or Property Code that provides for such intervention, or otherwise ensures that a condemning authority must give a municipality notice of its intentions, or provides any avenue for a city to protest a condemnation proceeding by another governmental entity intruding upon its sovereignty.

It is significant that the sole court that expressly considered the purpose of section 62.106(d)'s predecessor in the context of condemnation proceedings has concluded that the statute was enacted "for the benefit of the municipality[,]" so that there would "be no conflict in the use to which land in a city could be put, as between a navigation district and a city." Banta v. Chambers-Liberty Counties Navigation Dist. ( Banta I), 445 S.W.2d 61, 62 (Tex.Civ.App. — Beaumont 1969), rev'd on other grounds, ( Banta II), 453 S.W.2d 134 (Tex. 1970). If, indeed, section 62.106(d) was enacted for the benefit of municipalities like the City, but that provision's consent prerequisite is not jurisdictional, then a municipality's right to consent is entirely illusory because the municipality itself is not made a necessary party to the proceedings by the terms of the statute, the statute provides no means for the municipality to assert the violation of its right, and no statutory remedy is provided for a district's violation of the right to consent.

It is perverse to interpret section 62.106 as providing an illusory right without a remedy. It is equally perverse to interpret section 62.106 as requiring that a municipality that is not a necessary party to condemnation proceedings, that has no statutory right or duty to assert its "claim" under the statute, and that has no statutory remedy for a violation of its rights, nevertheless loses its statutorily mandated veto power over a navigation district's assertion of the power of eminent domain within the municipality's boundaries if the district chooses not to seek that consent and the municipality does not find out before the land is condemned, find a vehicle to protest the violation of its right to consent, and timely assert that right. Either way, the result is absurd. Courts should not read a statute to create an absurd result. Loutzenhiser, 140 S.W.3d at 356 (quoting Barshop v. Medina County Underground Water Conservation Dist, 925 S.W.2d 618, 629 (Tex. 1996)). Rather, "[i]n enacting a statute, it is presumed that . . . (3) a just and reasonable result is intended." TEX. GOV'T CODE ANN. § 311.021(3) (Vernon 2005). "[W]ords, no matter how plain, will not be construed to cause a result the Legislature almost certainly could not have intended." Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 135 (Tex. 1994) (Hecht, J., concurring) (quoted in Loutzenhiser, 140 S.W.3d at 356 n. 20).

Furthermore, I disagree that the Hubenak III holding has the broad sweep that the majority attributes to it and that it automatically renders all the mandatory requirements for the condemnation of land non-jurisdictional, regardless of the purpose of a requirement, the person or entity at whom it is directed (i.e., a party or non-party, sovereign entity or landowner), or the existence or non-existence of a statutory means for protesting a violation of the statute or a statutory remedy for the violation. First, the Hubenak III court held only that the "unable-to-agree" requirement — which applies to the relationship between the condemning authority and the landowner — was non-jurisdictional. See Hubenak III, 141 S.W.3d at 180. The court did not summarily declare all statutory condemnation requirements to be non-jurisdictional. See id.; see also Whittington, 174 S.W.3d at 896.

Second, the unable-to-agree requirement requires the condemning authority to show, as a prerequisite to maintaining a condemnation suit, that it and the landowner could not agree on condemnation damages. See TEX. PROP. CODE ANN. § 21.012(a) (Vernon 2004). The condemning authority and the landowner are both necessary parties to the condemnation proceeding. See id. § 21.012. Under both Water Code chapter 62 and the Property Code, in contrast, a city that has the right to give or to withhold its consent to right-of-way condemnation within its territory is not contemplated, within the applicable statutes, as a party to the condemnation proceeding. See TEX. WATER CODE ANN. §§ 62.106, 62.107 (Vernon 2004); TEX. PROP. CODE ANN. §§ 21.011, 21.012.

Third, the purpose of the unable-to-agree requirement is "to 'forestall litigation and to prevent needless appeals to the courts when the matter may have been settled by negotiations between the parties.'" Hubenak III, 141 S.W.3d at 184. Protesting the failure of a district to comply with this requirement within the context of condemnation proceedings does not create more litigation. Rather, the condemnation proceedings provide both a means for a landowner to protest that the condemning authority has not satisfied the unable-to-agree requirement and a statutory remedy for a wrongful taking. By contrast, the purpose of Water Code section 62.106(d)'s consent provisions is to assure that there is "no conflict in the use to which land in a city could be put, as between a navigation district and a city." Banta I, 445 S.W.2d at 62. Because condemnation proceedings provide neither a means for a city to protest that it did not consent to a navigation district's condemnation of land within its boundaries nor a remedy for the district's violation of the consent provisions, the purpose of the consent provision cannot be satisfied within the context of condemnation proceedings and continuing the proceedings does not resolve the legal issues raised by non-consent. Given these critical differences between the parties and the statutory provisions involved, I would hold that Hubenak III's cited holding does not apply to section 62.106(d)'s consent prerequisite.

It is vital that courts distinguish between the positions of landowners whose property a sovereign seeks to condemn in valid condemnation proceedings and the positions of governmental entities, like the City, whose sovereign rights are infringed by constitutionally and statutorily invalid condemnation proceedings. At least eight times the Water Code, along with other codes' provisions regulating various specialized districts, requires a city's consent before a district may perform various acts, condemnations, or services within the city's territorial or extraterritorial jurisdiction. Although these laws sometimes provide for an alternative means for the district's act, condemnation, or service to be accomplished within a city's extraterritorial jurisdiction when the city fails to consent, no Water Code provision provides such an alternative means to authorize the district's act, condemnation, or service within a city's territory. Rather, the Water Code and the related codes mentioned above consistently require a city's consent to these acts — including certain right-of-way condemnations — when they are conducted within the city's territory, and they do not provide for an alternative means to act if consent is withheld. These statutes make it clear that the Legislature intended to require the consent of cities to certain invasive acts, including condemnation proceedings by another sovereign entity, within their own territory, and so to protect them in that situation. The only way to carry out this clear intent satisfactorily is to construe section 62.106's consent prerequisite to be jurisdictional.

For all the foregoing reasons, I would hold that the consent of an incorporated city or town to a taking by a navigation district within its boundaries is a condition precedent to the trial court's exercise of jurisdiction over condemnation proceedings brought by the navigation district against a landowner and that proceedings brought without such consent must be dismissed for lack of subject-matter jurisdiction. Nor am I persuaded to the contrary by the majority's arguments, which I address below.

Objections to Majority's Reasoning

In addition to drawing the conclusion that the consent provision in section 62.106(d) is jurisdictional, rather than non-jurisdictional, as the majority holds, I disagree with the majority's reasoning in support of its judgment on a number of important points.

A. Interference with "Settled" Property Rights

I disagree with the majority's reasoning that the potential instability to "settled" property interests that might arise from finding the consent prerequisite jurisdictional necessarily requires the conclusion that the prerequisite is not jurisdictional. The Port raises a related argument, that the purpose of its rights to exercise the power of eminent domain will be thwarted by finding section 62.106(d)'s consent prerequisite to be jurisdictional.

I fully recognize the concern expressed by the supreme court in Huhenak III that "[i]f the 'unable to agree' requirement [contained in section 21.012(a) of the Property Code's condemnation provisions] were necessary to confer subject matter jurisdiction, then judgments in condemnation proceedings would be subject to collateral attack" by landowners. Hubenak III, 141 S.W.3d at 182 (emphasis added). But the possibility of undoing settled condemnation proceedings by a collateral attack by a landowner protected by statutory rights and remedies is not the issue here.

Section 62.106(d) plainly states that the navigation district's power of eminent domain is subject to the consent of the "lawful authorities" by the city. There is no statutory grant of power to a navigation district to condemn a right of way through a part of a city without such consent. See TEX. WATER CODE ANN. § 62.106(d). As shown above, the power of eminent domain is a constitutional power to take property, and that power must be conferred either expressly or by necessary implication by the Legislature. See Pate, 309 S.W.2d at 831; Saunders, 847 S.W.2d at 427. If a navigation district, having been granted a limited statutory power of eminent domain, exceeds its constitutional and legislative grant of authority, it necessarily acts ultra vires and violates the Constitution. See Saunders, 847 S.W.2d at 427-29 (holding that taking of property by water district pursuant to eminent-domain powers without statutory authority violated Texas Constitution Article I, section 17); see also City of Wichita Falls v. Thompson, 431 S.W.2d 909, 911-13 (Tex.Civ.App.-Fort Worth 1968, writ ref'd n.r.e.) (holding that although power of eminent domain inheres in sovereignty and is limited by constitutional provisions only, neither State nor its subdivision may exercise power unless law-making authority has conferred such right by statutory enactment; exercise of such rights beyond delegated powers is abuse of discretion). It is, therefore, not at all unjust that the remedy for a navigation district's ultra vires action in taking property within a city without the city's consent is a collateral attack by the sovereign whose authority the district has infringed that undoes the exercise of that illegitimate authority and requires the district to obtain consent before proceeding with its plans. Such proceedings cannot be called "settled" merely because a navigation district succeeds in concealing its violation of the statute until the condemnation proceedings have ended.

Indeed, the Texas Supreme Court long ago indicated that a collateral attack is to be expected if a condemning authority infringes the rights of another sovereign in the exercise of its power of eminent domain. See City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028, 1034 (Tex. 1940) (holding that erection by city of pier beyond seawall, hence "on and over" waters of Gulf of Mexico and over soil beneath waters owned by State and held in trust for all people, "would be an encroachment, at the least, upon the prima facie property rights of the sovereign, that is, the State, so far as the tide lands are concerned, and an encroachment upon the unquestioned property rights of the State in so far as such structure is proposed to be projected out into the deep waters of the sea . . . subject to be removed at the instance of the State, whether the same should tend to obstruct navigation or otherwise"). The supreme court further held in Mann that, by authorizing Galveston to regulate and to police structures built in the waters adjacent to the beach of the city, "it is not to be implied that the Legislature intended to give approval to any invasion of the rights of the State." 143 S.W.2d at 1034; Crary v. Port Arthur Channel Dock Co., 92 Tex. 275, 47 S.W. 967, 971 (Tex. 1898) (holding that consent of United States Secretary of War was not required by statute authorizing Port Arthur Channel and Dock Company to condemn land and water right of way for construction of channel and docks, but nonetheless warning that "[s]hould the government, after appellant's property has been taken, see proper to obstruct the enterprise and prevent either the completion of the work or the use of the channel, the land would be discharged of its burden"). The same reasoning and policy concerns apply here and mandate the conclusion that a navigation district's condemnation of land within a city without the city's consent is an infringement of the sovereign rights of the city.

By contrast, if as the majority holds, a navigation district's infringement of a city's right to consent results in the "settled" condemnation of land within the city, the city whose right to consent has been denied is left with no remedy at all for the infringement of its sovereign right to consent. The majority, however, does not acknowledge the necessary conclusion flowing from its position — namely, that section 62.106(d) thus becomes a provision that asserts a right without a remedy, which is no right at all. Again, we should not interpret a statute in such a way as to create an absurd result. See Loutzenhiser, 140 S.W.3d at 356; see also Bridgestone/Firestone, 878 S.W.2d at 135 ("[I]n some circumstances, words, no matter how plain, will not be construed to cause a result the Legislature almost certainly could not have intended") (quoted in Loutzenhiser, 140 S.W.3d at 356 n. 20); TEX. GOV'T CODE ANN. § 311.021(3)-(4) ("In enacting a statute, it is presumed that . . . (3) a just and reasonable result is intended . . . [and] (4) a result feasible of execution is intended. . . .").

Reading section 62.106(d) to be jurisdictional, by contrast, does promote the purpose of the specific statutory section, which was enacted "for the benefit of the municipality[,]" so that there would "be no conflict in the use to which land in a city could be put, as between a navigation district and a city." Banta I, 445 S.W.2d at 62. This policy is at least as important as the policy of protecting settled property interests from collateral attack. Moreover, "[o]ur role here . . . is not to second-guess the policy choices that inform our statutes or to weigh the effectiveness of their results; rather, our task is to interpret those statutes in a manner that effectuates the Legislature's intent" — which, with regard to section 62.106(d), is to benefit the municipality by ensuring that no conflicts arise "in the use to which land in a city could be put, as between a navigation district and a city," and thus to protect the sovereign powers of cities to determine the use to which land within their boundaries may be put.

B. Right to Consent as Bargaining Chip for Landowner

The majority also opines that the Legislature's real intention in enacting section 61.106(d)'s consent prerequisite was to benefit landowners, not cities. The majority states:

A simpler interpretation is that the provision confers standing upon a city to be heard, or that any municipal interest can be represented by the private landowner in a timely fashion, who if successful, will keep his land or command an above fair-market-value premium for its sale.

In light of the considerations set out above, this argument is simply untenable. A city should not be forced to rely on a private landowner to assert such an important right when the landowner might not realize that the city had the right, might opt not to prosecute the right, or might not contest the condemnation proceeding itself. This is yet another indication that the Legislature intended for section 62.106(d)'s consent provision to be jurisdictional, not non-jurisdictional, as the majority contends.

C. Intervention to Protect Sovereignty

I also disagree with the majority's argument that because the City has intervened in this condemnation proceeding its rights are adequately protected. The majority states, "It is hard to imagine that the Legislature intended to render an entire class of condemnation judgments void for failure to obtain consent when a timely intervention would do. . . . " Along the same lines the majority posits that "reading [section 62.106(d)] to withhold trial court jurisdiction is unnecessary to protect the interests of local government" because, among other things, cities may intervene in condemnation proceedings.

First, this Court should hesitate to speculate on whether a municipality may, in fact, intervene in a condemnation proceeding when the issue is not before us because, as is explained above, we lack subject-matter jurisdiction in this interlocutory appeal to consider the trial court's denial of the motion to strike the City's intervention. See Ahmed v. Shimi Ventures, L.P., 99 S.W.3d 682, 688 (Tex.App. — Houston [1st Dist.] 2003, no pet.) ("We must strictly construe [Civil Practice and Remedies Code] section 51.014's grant of interlocutory jurisdiction because the Legislature intended it to be a narrow exception to the general rule that only final judgments are appealable.").

Second, the fact that the affected City happens to be an intervening party in this suit does not provide protection to any other cities, including those that do not discover condemnation proceedings until after judgment. I note that, even here, the Port contested the City's intervention in this suit because the City had not been a party to the administrative portion of the condemnation proceeding. That is, the Port argued below that the City had, in effect, no ability to participate in the condemnation proceedings and no way to enforce the right to consent that the Legislature had given it in section 62.106(d).

Moreover, the majority's opinion implies that a city has the burden to discover and to assert its right to consent in a timely fashion, even in the absence of a statutory provision for its protection, in the event its right is infringed. Under the majority's reasoning, if a city does not timely intervene to assert the lack of consent, it loses its right to object. In the case of a city that does not learn of the condemnation proceedings before they are complete, this translates into the unknowing waiver of a statutory right — the opposite of the fundamental rule that waiver of a constitutional or statutory right consists of a party's "intelligently, voluntarily, and knowingly relinquishing a known right or acting inconsistent with claiming that right." Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 844 (Tex. 2000).

Above all, the majority's conclusion that a city's rights are adequately protected by the possibility that it might be allowed to intervene in condemnation proceedings trivializes the consent provision, if it does not render it utterly meaningless, in sharp contrast to the supreme court's interpretation of the importance of such provisions, as set out in Mann, 135 Tex. 319, 143 S.W.2d 1028 (Tex. 1940). In Mann, the City of Galveston proposed to build a park with a pier extending beyond the seawall into the Gulf of Mexico over land belonging in part to the State and to finance the construction with general obligation bonds secured by a deed of trust. Id. at 1029-31. The Attorney General, however, refused to approve the bonds, as he was required to do by statute, and a mandamus proceeding was brought to compel him to approve them. Id. at 1029. The Supreme Court of Texas held that the Legislature lacked power to transfer to the city land held by the State in trust for all the people; the court further held that the structures would be at least a prima facie encroachment upon the prima facie rights of the sovereign over the tidelands and upon the unquestioned property rights of the sovereign over the land beneath the sea and, for that reason, the structures would be subject to removal at the instance of the State. Id. at 1032-34. The consent of the Attorney General to the bonds was designed "to protect the particular locality and its habitants against the imposition of unauthorized or illegal obligations" and to give assurance to intending purchasers that they would acquire indefeasible title to bonds purchased. Id. at 1035. The court concluded, "[t]he duty thus imposed upon the Attorney General is important and is in no sense perfunctory." Id.

As in Mann, the duty imposed by section 62.106 upon navigation districts to obtain the consent of cities within whose boundaries they intend to condemn property is "in no sense perfunctory" because it assures the protection of a city against the assertion of another entity's sovereign authority, that could impair the city's own development plan, and because it likewise assures the protection of the city's inhabitants against obligations that might be imposed upon them by the navigation district without the city's consent. See TEX. WATER CODE ANN. § 62.106. Thus, unlike the majority, I do not believe that section 62.106 places a burden on a city to find out about the condemnation plans of a navigation district within its territory and to object before condemnation proceedings are brought or to intervene to protect its rights on pain of losing the right to object altogether. I think, instead, that the consent prerequisite is important and that Mann shows us why it is important.

D. Enlargement of Trial Court's Jurisdiction

I further disagree with the majority's reasoning that the consent prerequisite cannot be jurisdictional because it does not "define, enlarge, or restrict the class of causes [that] the [county court at law] may decide or the relief the court may award." Sierra Club v. Tex. Nat. Res. Conservation Comm'n ( Sierra Club I), 26 S.W.3d 684, 688 (Tex.App.-Austin 2000), aff'd on other grounds, ( Sierra Club II), 70 S.W.3d 809 (Tex. 2002). Applying Kazi, some courts of appeals, including our own and the Sierra Club I court, have indicated that if a statutory requirement defines, enlarges, or restricts the class of causes that the court may decide or the relief that the court may award, the requirement is jurisdictional; if the requirement does none of these things it is not jurisdictional, but is only a condition on which the plaintiffs right to relief depends. See Helton v. R.R. Comm'n of Tex., 126 S.W.3d 111, 118 (Tex.App. — Houston [1st Dist] 2003, pet. denied); Harris County Emergency Servs., 122 S.W.3d at 223; Heart Hosp. TV, L.P. v. King, 116 S.W.3d 831, 834 (Tex.App. — Austin 2003, no pet.); Kshatrya v. Tex. Workforce Comm'n, 97 S.W.3d 825, 830-31 (Tex.App.-Dallas 2003, no pet.); Hartford Underwriters Ins. Co. v. Hafley, 96 S.W.3d 469, 473 (Tex.App.-Austin 2002, no pet.); Tex. Dep't of Transp. v. Beckner, 74 S.W.3d 98, 103 (Tex.App.-Waco 2002, no pet.); Sierra Club I, 26 S.W.3d at 688. Although this authority was decided in the context of exhaustion of administrative remedies, I (like the majority) find it instructive for the present situation.

In my view, the majority necessarily expands the scope of condemnation proceedings by writing the consent prerequisite out of the statute as a jurisdictional requirement, for which the remedy is dismissal, and, instead, deeming the consent prerequisite a non-jurisdictional requirement that does not abort condemnation proceedings. If section 62.106(d) means what it says, and if its provisions are mandatory, whether jurisdictional or not, a navigation district that intends to condemn property within the boundaries of a city must plead and prove that it has obtained the city's consent. See TEX. WATER CODE ANN. § 62.106(d). Yet by holding that section 62.106(d) is non-jurisdictional, in the absence of a statutory avenue for a city to protest a violation of its right to consent, the majority necessarily implies that a navigational district need not plead and prove that it obtained the city's consent to the condemnation. Absolutely nothing happens if a navigation district simply ignores this mandatory provision of section 62.106 if, as the majority avers, the trial court has jurisdiction to hear the condemnation proceedings and to enter a "settled" judgment that the city may not then collaterally attack. Thus, under the majority holding, the jurisdiction of the trial court is necessarily expanded to include condemnation proceedings to which a city's consent has not been obtained, contradicting the plain language of the statute and further supporting the conclusion that the majority opinion is incorrect and that section 62.106(d) is jurisdictional, not non-jurisdictional. See id.

E. Abrogation of Section 62.106(d) by Later Enactment of Water Code Section 62.107

Finally, I disagree with the majority's statement that "Water Code section 62.107, later-enacted in 1947, confers condemnation power upon the Port with no local consent requirement, and could suggest that the consent requirement does not apply." See TEX. WATER CODE ANN. § 62.107. I initially note that this suggestion — that section 62.107 may supplant section 62.106(d)'s consent prerequisite — has nothing to do with whether section 62.106(d)'s consent prerequisite is jurisdictional. Rather, the statement is an argument that section 62.106(d)'s consent prerequisite no longer controls, not that it controls but is not jurisdictional. The statement is, therefore, irrelevant to determining whether section 62.106(d)'s consent prerequisite is jurisdictional.

In any event, section 62.107 grants the Port the general power to "acquire by gift, purchase, or condemnation" certain lands. Id. § 62.107(a) (emphasis added). Section 62.106 qualifies section 62.107 with respect to the use of the land. Therefore, sections 62.107 and 62.106(d) do not conflict, but should be read consistently — which is how the Code Construction Act requires that we interpret two provisions within the same act, if at all possible. See TEX. GOV'T CODE ANN. § 311.021(2) (Vernon 2005) ("In enacting a statute, it is presumed that: . . . (2) the entire statute is intended to be effective."); Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004) ("If the statutory language is unambiguous, we must interpret it according to its terms, giving meaning to the language consistent with other provisions in the statute."). If sections 62.106 and 62.107 are read consistently, then the consent provision in section 62.106(d) is not inapplicable, but is complemented by section 62.107. I also note that it would be strange indeed for the Legislature to have supplanted one section of an act by the "later-enacted" very next section, dealing with complimentary subject matter and since codified as part of the same Act by the same Legislature in the same session and made effective on the same day, and I do not agree that it did so here.

F. Conclusion

For all of the reasons stated above, I would hold that Water Code section 62.106(d)'s consent prerequisite is a condition precedent to a trial court's exercise of subject-matter jurisdiction over condemnation proceedings brought under that section. Thus, the Port's failure to obtain the City's consent to its condemnation of American's property was the proper subject of a jurisdictional plea, and that plea should have been granted and the Port's condemnation proceedings against American dismissed, assuming that section 62.106 controls the disposition of the plea.

The Port argues, however, that section 62.106 is inapplicable to the Port's condemnation proceedings against American and thus does not control the jurisdiction of this case. I turn, therefore, to those arguments.

Applicability of Section 62.106(d) to this Case

The City rests its jurisdictional plea on its claim that the Port violated section 62.106, which provides that "no right-of-way may be condemned" without the prior consent of a city through which the right-of-way runs. See TEX. WATER CODE ANN. § 62.106(d).

The Port offers two reasons that section 62.106(d) does not control. First, the Port argues that four totally separate Water Code provisions — sections 61.115, 61.161, 62.105, and 62.107 — provide independent authority for the condemnation and do not require a navigation district to obtain a city's approval before condemning a right-of-way within the city's territory. Second, and alternatively, the Port contends that the term "right-of-way" in section 62.106(d) means an easement interest, not one in fee simple. The Port's focus is thus on the title in which the property is taken, rather than on the property's intended use. The Port argues that it was condemning the property in fee simple and not as a right-of-way. The Port argues that section 62.106 applies only when a navigation district condemns an easement, not when it takes property in fee simple. It points to evidence that the Bayport Terminal Project also entailed some matters that it contends could not be considered right-of-way projects under its definition: dredging to accommodate for wharves and docks and the building of a sight-and-sound berm from the dredging material. The Port argues that because it was condemning more than an easement here, section 62.106(d) does not apply and that it may condemn American's property without the City's consent.

The City argues, in reply, that the term "right-of-way," as used in section 62.106, refers to the property's intended use, rather than to the title in which the property will be taken and that its definition is not confined to an easement. The City also points to evidence that the Port was planning to use the property for certain purposes that the City contends were rights-of-way under any definition. For example, the City notes that the Port intended to build a railroad corridor and a roadway that would lead to a cruise terminal and allow for maintenance. According to the City, the result of the property's intended use as a right-of-way to any extent is that section 62.106(d) applied to the condemnation proceeding. Thus, the City concludes that the Port had to obtain its consent before the Port could condemn American's property. The City also argues that the sections of the Water Code cited by the Port as independent grants of the power of eminent domain that do not contain a consent prerequisite are not, in fact, independent sources of condemnation authority that make its consent to the taking unnecessary.

I will address both of the Port's arguments.

A. Whether Other Water Code Provisions Control and Allow Condemnation Without the City's Consent

Construction of Water Code Sections 61.115, 61.161, 62.105 and 62.107

In response to the City's reliance on section 62.106(d) in its jurisdictional plea, the Port argued below, as it does on appeal, that four other provisions in chapters 61 and 62 of the Water Code independently allowed for the condemnation of American's property without the City's consent and, therefore, that consent was unnecessary.

Water Code chapters 61 and 62 apply to the Port because it operates as an article XVI, section 59 navigation district while also enjoying the powers of an article III, section 52 navigation district. These chapters provide, in relevant part:

Section 61.115. Acquisition of Property

The [navigation and canal] commission may acquire by gift, grant, purchase, or condemnation any necessary rights-of-way and property for necessary improvements contemplated by the district.

Id. § 61.115.

Section 61.161. Eminent Domain

(a) The district may exercise the power of eminent domain.

Id. § 61.161(a).

Section 62.105. Right-of-Way

The [navigation and canal] commission may by gift, grant, purchase, or condemnation acquire the necessary right-of-way and property of any kind for all necessary improvements contemplated by this chapter.

Id, § 62.105.

Section 62.107. Acquisition of Land

(a) Any district created under this chapter may acquire by gift, purchase, or condemnation and may own land adjacent or accessible to the navigable water and ports developed by it which may be necessary or required for any and all purposes incident to or necessary for the development and operation of the navigable water or ports within the district, or may be necessary or required for or in aid of the development of industries on the land.

Id. § 62.107(a).

The Port argues that section 62.106(d)'s consent prerequisite is mooted by the Port's independent authority to condemn under Water Code sections 61.115, 61.161, 62.105. and 62.107, none of which contain a consent prerequisite like that in section 62.106. See id. §§ 61.115, 61.161, 62.105, 62.107. The City responds that (1) section 62.106(d)'s protections would be "meaningless" if the statutes on which the Port relies controlled to the exclusion of section 62.106(d) and (2) the statutes on which the Port relies can be harmonized with section 62.106(d)'s consent prerequisite.

The rules of statutory construction provide that courts (1) must presume that the Legislature intended a just and reasonable result; (2) may consider the statute's object, the circumstances under which it was enacted, common law and former statutory provisions, including laws on the same or similar subjects, and the consequences of a particular statutory construction; (3) must construe all portions of a statute (here, a statutory scheme) to be effective, if possible; and (4) must not confine their review to isolated statutory words, phrases, or clauses, but must instead examine the entire act. See TEX. GOV'T CODE ANN. §§ 311.021(2), (3), 311.011, 311.023(3), (5); Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001). All of these rules apply here. Most important, however, are the "plain language" rule and the rule of ejusdem generis. See Fitzgerald, 996 S.W.2d at 865-66 (in ascertaining legislative intent, the most important consideration in statutory interpretation, courts begin with plain language of statute). Under the rule of ejusdem generis, when words of a general nature are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words is restricted to the particular designation. See Hubenak III, 141 S.W.3d at 189-90 n. 110 (applying principle of ejusdem generis to condemnors' offer and tract of land described in condemnation petition); Hilco Elec. Coop. v. Midlothian Butane Gas Co., 111 S.W.3d 75, 81 (Tex. 2003) (applying principle to purpose for which electric co-operatives can be organized); Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 701-02, 706 (Tex. 2002) (applying principle to construction of private easements).

Sections 61.115, 61.161, and 62.105 of the Water Code, which the Port contends supersede section 62.106 with its consent provision, are all general provisions conferring on navigation districts the powers to acquire property, to exercise the power of eminent domain, to acquire "necessary rights-of-way and property of any kind," and to condemn and to own "land adjacent or accessible to the navigable water and ports developed by it." See TEX. WATER CODE ANN. §§ 61.115, 61.161, 62.105, 62.107.

For example, sections 61.161 confers on navigation districts the power of eminent domain, and section 61.115 empowers navigation districts to condemn any "necessary rights-of-way and property for necessary improvements." Id. §§ 61.161, 61.115. Section 62.105, entitled "Right-of-Way," grants navigation districts the general power to "acquire the necessary right-of-way and property of any kind" by "gift, grant, purchase, or condemnation." Id. § 62.105. By contrast, section 62.106, entitled "Condemnation Proceedings," specifies the purposes for which the district is granted the power to condemn, the procedure for condemning, and the limitations on condemnation of rights-of-way. Id. § 62.106. That is, section 62.106 limits the navigation district's exercise of the foregoing powers in condemnation proceedings to those purposes that are necessary for the improvement of rivers, bays, creeks, and streams, the construction and maintenance and canals and waterways, and other purposes authorized by chapter 62; and it further limits the exercise of that power by requiring the prior consent of the lawful authorities of any incorporated city or town in which the district seeks to condemn a right-of-way. See id. § 62.106. Thus, section 62.106 specifies certain particular purposes, applicable in this case, to which the general powers conferred by sections 61.115, 61.161, and 62.105 may be put.

Section 62.107 is complementary to section 62.106. Section 62.106 confers on navigation districts the power to "condemn and acquire the right-of-way" as necessary to improve navigable waters and to construct and to maintain canals and waterways, subject to the condition that no right-of-way may be condemned without the consent of the lawful authorities of any city through which a right-of-way is condemned. See id. § 62.106. Section 62.107 then grants navigation districts the power to "acquire by gift, purchase, or condemnation" land that may be "necessary for the development and operation of the navigable waters or ports within the district" or necessary for the development of or in aid of "industries on the land." See id. § 62.107. Section 62.106 thus states certain uses for which a navigation district may acquire property; and section 62.107 states the means by which such property may be acquired.

I disagree with the Port's position that the grants of eminent-domain powers in sections 61.115, 61.161, 62.105, and 62.107 of the Water Code represent independent, limitation-free bases for navigation districts to condemn rights-of-way through cities. Rather, these are all provisions of the Water Code that are applicable to navigation districts like the Port and that do not conflict with section 62.106. Therefore, under the plain language rule and the rule that all portions of a statutory scheme must be given effect, they must be harmonized with section 62.106. Moreover, under the rule of ejusdem generis, the consent requirement in section 62.106 controls over the more general grants of power in the other provisions, not the other way around, as the Port would have it. Reading the two chapters' eminent-domain provisions as the Port does contravenes the rules of construction. Reading them as the City does not only comports with well-settled rules of statutory construction, but also promotes the purpose of section 62.106(d)'s consent prerequisite, which is to "benefit . . . the municipality" by ensuring that "there [is] no conflict in the use to which land in a city could be put, as between a navigation district and a city." See Banta I, 445 S.W.2d at 62.

Grant of Eminent-Domain Power to the Port Under the Texas Constitution

I also disagree with the Port's implicit argument that the Legislature's general grant of eminent-domain power to navigation districts in sections 61.115 and 61.161 "trumps" chapter 62's limitation on that power in the consent prerequisite in section 62.106(d). The special legislation converting the Port to an article XVI, section 59 navigation district provided:

Sec. 2. Conversion of District and Tax Supported Obligations.

(a) Effective and operative January 1, 1958, [ the Port, referred to as "the District" herein] is hereby converted to a navigation district operating under the provisions of Section 59 of Article XVI, Constitution of Texas, and after said date, said District will operate under Section 59 of Article XVI and this Section 2 of this Act;. . . .

Said District will thereafter be empowered and authorized to exercise, in addition to all powers conferred by this Act, all powers conferred upon said District by the law or laws under which it was organized [ TEX. CONST, art. HI, § 52], and, in addition, shall have all of the powers and jurisdiction conferred upon Districts originally organized under Article XVI, Section 59, of the Constitution of the State of Texas, and particularly [listing several statutes then in effect, including the predecessor to current Water Code section 61.115, applicable to article III, section 52 districts]; provided, that if there is any conflict or inconsistency between said laws or any of them, and this Act, then to the extent of conflict or inconsistency, the provisions of this Act shall govern.

See Act of Apr. 11, 1957, 55th Leg., R.S., ch. 117, § 2, 1957 Tex. Gen. Laws 241, 247 (emphasis added), amended by Act of May 25, 1987, 70th Leg., R.S., ch. 63, § 1, 1987 Tex. Gen. Laws 3506, 3506-07. The "powers and jurisdiction" set out in Chapter 62 of the Water Code are those conferred upon navigation districts by article XVI, Section 59. The powers and jurisdiction set out in Chapter 61 are conferred by article III, Section 52.

From the plain language of the above-quoted Act, it is clear that the Legislature intended that the Port function, first and foremost, as an article XVI, section 59 district and that the "jurisdiction and powers" of an article III, section 52 district merely supplement, rather than supplant, the Port's article XVI, section 59 powers, except that, in cases of conflict, "this Act shall control." Because "this Act" is the special legislation that converted the Port to an article XVI, section 59 district, I construe the "except that" proviso, by its plain language, to state that, in cases of conflict, the provisions of article XVI, section 59 control over the provisions of article III, section 52; hence when there is a conflict between them, the provisions of Chapter 62, enacted pursuant to article XVI, section 59, control over those in Chapter 61, enacted pursuant to article III, section 52. Thus, if there were a conflict between section 62.106 and either section 61.115 or section 61.161, section 62.106 would control. However, as there is no conflict between the provisions in chapters 62 and 61 invoked by the Port, all provisions cited by the Port apply to the condemnation proceedings at issue here, with the more specific controlling over the more general.

Accordingly, I would hold on this additional basis that Water Code section 62.106(d)'s consent prerequisite is not mooted by the general eminent-domain powers granted by chapter 61 of the Water Code, but that satisfaction of section 62.106(d)'s consent requirement is a jurisdictional prerequisite to the Port's maintenance of condemnation proceedings against American.

B. Whether the Port's Taking Constitutes Condemnation of a "Right-of-Way" Requiring the City's Consent Under Section 62.106

Finally, the Port argues that because section 62.106, by its express language, applies only to the taking of "right[s]-of-way," and because the Port intends to take a fee-simple interest in the condemned property, not a right-of-way, section 62.106 does not apply, and the City's consent was not necessary to the Port's condemnation of American's property.

The City acknowledges that the term "right-of-way" has been held to mean different things in different contexts. However, it argues that, in this context, a navigation district's right to condemn right-of-way refers merely to the purpose for which it may take land, not to the interest that it may take in the land. A close reading of section 62.106 as a whole, in light of the entirety of the Water Code and settled law, compels the conclusion that the City's interpretation of section 62.106 is correct.

First, the other sections of the Water Code just discussed are designed to empower navigation districts to take whatever land is necessary, and in whatever way is necessary, to achieve the purpose of section 62.106. As the Port itself acknowledges, sections 61.115, 61.161, and 62.107 of the Water Code all empower a navigation district to take land in fee simple. See TEX. WATER CODE ANN. §§ 61.115, 61.161, 62.107. Section 62.106, by contrast does not refer to the manner in which land may be taken; rather it refers to the purposes for which public and private land may be condemned by a navigation district. Id. § 62.106. When these provisions are harmonized with section 62.106, as the rules of statutory construction require, it is clear that "right-of-way" refers to the purpose for which a navigation district may condemn public or private land.

It is also clear from the other provisions of the Code and prior law that land may be taken in any way necessary to achieve the purposes set out in section 62.106 and that section 62.106's consent provision applies to such a taking, regardless of the means by which the land is taken. Moreover, other Water Code provisions would not make sense if right-of-way were defined solely as the title in which property is taken, rather than as the use to which the property will be put.

The Port, however, noting that section 62.106(a) does not define the term right-of-way, supports its argument that right-of-way refers only to an easement by referring us to subsection 62.106(b) of section 62.106. This subsection provides that "[t]he assessment of damages [in condemnation proceedings] shall be in conformity with the laws of the State of Texas for condemnation and acquisition of rights-of-way by railroads." TEX. WATER CODE ANN. § 62.106(b) (emphasis added). The Port contends that because the laws for condemnation of rights-of-way by railroads provide elsewhere that "[t]he right of way secured by condemnation to any railway company in this State shall not be construed to include the fee simple estate in lands. . . .," section 62.106(b) should be construed as prohibiting navigation districts from taking land in fee simple.

The Port's argument misconstrues section 62.106(b). Section 62.106(b) does not refer to the title in which a navigation district may acquire property through the exercise of its power of eminent domain. Rather, by its plain language, the section sets out a statutory standard for the assessment of damages in condemnation proceedings. See TEX. WATER CODE ANN. § 62.106(b). Under the Texas Constitution, the power of the State to take property for a public use is subject to the right of the owner to just compensation. TEX. CONST, art. I, § 17; State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 736 (Tex. 1941). In this regard, the supreme court long ago established that when a taking by a railroad leaves the landowner with some beneficial use of the land, the damages will be less than the value of the fee; but, when the landowner is deprived of all beneficial use of the land, he may recover the market value of the fee, regardless of the nature of the conveyance. See Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953, 955-56 (Tex. 1952). Indeed, the court considered that "'this principle is so well established that it is generally assumed without discussion.'" Id. at 956 (quoting NICHOLS ON EMINENT DOMAIN, Vol. 4, § 12.41(2) (3d ed.2005)); see also Hale, 146 S.W.2d at 736 (indicating that, with respect to payment of just compensation, State itself "is in the same position and governed by the same rules, as railroads, counties and other sub-divisions of the State, and corporations, to which it has delegated power of eminent domain"). Both the holding and the reasoning in Thompson apply to the assessment of damages in a condemnation proceeding under section 62.106 of the Water Code. But neither Thompson nor section 62.106(b) concerns the title in which the property is condemned.

I likewise reject the Port's argument that reading section 62.106's right-of-way language as anything more than an easement is contrary to the Property Code's general rule that "[e]xcept where otherwise expressly provided by law, the interest acquired by a condemnor under this chapter does not include the fee simple title to real property, either public or private." TEX. PROP. CODE ANN. § 21.045 (Vernon 2000). The Meaney court, on which the Port relies, disposed of this very argument that was based on the statute's predecessor:

We are not unmindful of the provisions of [Property Code section 21.045's predecessor]. . . . This article provides that 'except where otherwise expressly provided by law, the right secured (under the power of eminent domain) shall not be so construed as to include the fee simple estate in lands.'

As stated in Texas Jurisprudence, 'this enactment is but an enunciation of the general rule, obtaining even in the absence of statute, that the condemnation of property for a public use divests its owner of no right further than is necessary for the purpose for which the condemnation was authorized.'

Meaney v. Nueces County Nav. Dist. No. 1, 222 S.W.2d 402, 407 (Tex.Civ.App.-San Antonio 1949) (citations omitted).

Furthermore, contrary to the Port's argument, the nature of the interest in property that may be taken by a navigation district is not constrained by Revised Civil Statute article 6339, which governs takings by railroads. Rather, the type of interest conveyed in a condemnation proceeding under chapter 62 of the Water Code depends upon the instrument under which it is conveyed, and a dispute over the nature of the title that has passed is determined by reference to the words of the deed and the attending circumstances. See Neale, 252 S.W.2d at 454-56. The use of the term right-of-way to indicate the purpose for which land is conveyed:

does not change the effect of the conveyance for the declaration in a deed of the purpose for which land is conveyed or the use to be made of it does not impose a condition upon the title granted; nor does it operate to limit the grant to a mere easement.

Id. at 456.

In accordance with the foregoing principles of law, the predecessor to section 62.106 was held to empower a district formed under article XVI, section 59 of the Texas Constitution, like the Port, to acquire absolute title when that type or kind of estate or interest was necessary. Meaney, 222 S.W.2d at 407-08; Nat'l Ass'n of Audubon Socs. v. Arroyo Colo. Navigation Dist, 110 S.W.2d 150, 152 (Tex.Civ.App. — San Antonio 1937, no writ) (holding that right-of-way may be held in fee or in easement). The Audubon Societies court stated, "Under [the predecessor to section 62.106], the discretion was lodged with the district to determine for itself whether it was necessary to obtain a fee-simple title to the right of way sought to be condemned or an easement over and through the leasehold estate held by the appellant." 110 S.W.2d at 152 (emphasis added). The Meaney court, construing the predecessor to section 62.106, explained:

It is not necessary that the term, 'fee simple,' or other particular and precise words be used to authorize the taking of a fee simple title. 'There are no sacra-mental words which must be used in a statutory power to take and hold lands in order to give a right to take the lands in fee. Any language in the statute which makes its meaning clear is sufficient.'

We hold that the appellee district is authorized under law to acquire fee simple title to lands for all necessary improvements contemplated by the Act.

Meaney, 222 S.W.2d at 407-08 (citations omitted); see also Housing Auth. of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 88 (Tex. 1940) (indicating that courts have construed grant of eminent domain power to mean that condemnor may condemn such property as it deems necessary for its purposes); Costello, 143 S.W.2d at 578 ("The history of the many laws enacted by the legislature of this State relating to the exercise of the right of eminent domain clearly shows that it is the policy of the legislature to liberalize the exercise of that power, rather than to restrict it."); Brazos River Conservation Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842, 846 (Tex. 1943) ("A governmental agency or public service corporation that has the power of eminent domain and that already own an interest in property sought to be condemned may, notwithstanding the ownership of such interest, acquire by condemnation the fee title in the same land when necessity exists for the taking of the fee title.").

I would hold that section 62.106 governs the instant condemnation proceedings and that the Port's power to condemn rights or interests in land under that section is limited only by the necessity of taking the land at issue for the purposes set out in the section, with the consent of the lawful authorities of any incorporated city or town within which condemnation is sought. This construction accords with the purpose of section 62.106(d)'s consent prerequisite, namely, to protect cities by allowing them veto power over right-of-way condemnation within their territory, regardless of the nature of the conveyance by which that right-of-way is obtained. Indeed, it would make little sense to read section 62.106 to protect cities only when a right of passage was condemned by easement within their boundary, but not when the same right of passage was condemned by fee. The Banta I court indicated as much when it described section 62.106(d)'s predecessor's purpose as protecting cities "so there [is] no conflict in the use to which land in a city could be put, as between a navigation district and a city." Banta I, 445 S.W.2d at 62 (emphasis added).

For the foregoing reasons, I would hold that right-of-way, as used in Water Code section 62.106, refers to the use of the property to be condemned, rather than the title in which the property is to be taken, and thus the fact that the land was taken in fee simple, as permitted by section 62.105, is irrelevant to the Port's obligation to obtain the City's consent to the taking before condemning the land under section 62.106. Accordingly, I would hold that the Port had to obtain the City's consent to condemn American's property. See TEX. WATER CODE ANN. § 62.106(d). The Port's having failed to do so, the trial court lacked subject-matter jurisdiction over the condemnation proceeding and that proceeding should have been dismissed.

Conclusion

I would reverse the trial court's order denying the City's jurisdictional plea and would render judgment that the City's jurisdictional plea be granted and that the condemnation proceeding be dismissed.