Appellate Court Says Developer Cannot Increase Impervious Cover While Matter Is Pending

Patricia and Terrell Graham sued DHJB Development, the developer of nearby property, claiming the development diverted water in a way that damaged the Grahams’ property.  The trial court determined DHJB’s development threatened to cause irreparable harm to the Grahams and issued a temporary injunction, which ordered DHJB not to add “impervious cover” within the development, pending a full trial.  DHJB appealed and the appellate court upheld the injunction.

Harmful Diversion of Diffuse Surface Water Is Prohibited
Section 11.086(a) of the Texas Water Code says no person may divert or impound the natural flow of surface waters in a manner that damages property of another by the overflow of the water diverted or impounded.  Texas courts have interpreted 11.086 as applying only to “diffuse surface water.” This is distinct from “floodwaters,” which are waters that have overflowed a natural water course but remain a continuous part of the original part of the water course.  Waters entering or following a ditch, pond, pipe or river are not subject to 11.086.  A 2003 opinion from a Texas court said that a landowner might divert “the entire Brazos River” across a neighbor’s property without liability under 11.086.

While DHJB’s appeal did not address if the alleged damage was from diffuse surface water, the issue may be subject to the trial on the merits. 

Threatened Irreparable Injury
In appealing the injunction, DHJB argued the Grahams failed to prove they faced “probable, imminent and irreparable injury.”  The 3rd Court of Appeals held the Grahams only needed to show “threatened” irreparable injury, and the trial court’s findings were sufficient to issue the injunction.

Impervious Cover
DHJB also argued ordering DHJB not to take “any action to increase impervious cover” was too vague because “impervious cover” was not defined.  The 3rd Court held DHJB did not adequately present this concern to the trial court and waived this argument for appeal.

For a copy of the 3rd Court’s opinion http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=a6dbdb5c-7f69-4809-a0b0-af5e0f778db8&coa=coa03&DT=Opinion&MediaID=ca96386a-152c-45ed-aaf5-26fc819f1af8

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