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Click here for the full text of this decision FACTS:Thirty Kaufman County residents sued mining companies, trucking companies and Kaufman County regarding the mining of limestone pits near the residents’ homes. In their claims against the county, the residents contend that the trucks cause dust to accumulate on their property and that the trucks drive onto their property. They claim the county hasn’t done anything to alleviate the problem — by paving the road, for instance, or by implementing traffic control measures to slow the trucks’ speed. The residents also assert that the county’s trucks cause accumulation of dust, as they do not observe traffic regulations and do not use tarps over their loads. They contend that work on the roads leading to the mines have caused erosion and flooding on their properties, and that the county has pushed large brush piles onto their properties. The residents said the actions on their property amounted to a taking under Texas Constitution Art. I, 17 and that the county’s use of the roads constituted a nuisance. The county filed for summary judgment based on sovereign immunity, which the trial court granted. HOLDING:Affirmed in part; reversed and remanded in part. The court first addresses the residents’ argument that a summary judgment granted in favor of the county on sovereign immunity grounds is improper because both their takings and nuisance claims have been recognized as exceptions to the governmental immunity doctrine. The court finds the residents’ characterization of the motion too narrow because, as described below, the residents cannot demonstrate that the county’s conduct amounts to a nuisance or a taking so as to overcome the county’s immunity defense. Nor can the residents establish that those actions fall within the limited waiver of immunity in the Texas Tort Claims Act. Turning to the merits, the court points out that when government takes private property without first paying for it, the owner may recover damages for inverse condemnation. Mere negligence that eventually contributes to property damage does not amount to a taking. Many of the residents’ claims are premised on allegations that the county failed to undertake certain measures to prevent the encroachment and damages allegedly caused by trucks owned by third parties. The residents’ assertions that the county should have widened roads, paved roads and enforced traffic regulations do not constitute intentional acts on the part of the county sufficient to establish a taking claim. An allegation that a person or entity failed to undertake an act it should have taken constitutes an allegation of negligent conduct, and the Texas Supreme Court has repeatedly held that acts of mere negligence will not support a taking claim. The court thus sustains the trial court’s entry of summary judgment on the takings and nuisance claims premised on the county’s alleged failure to undertake various actions. On the other hand, with respect to the allegations of the county’s use and misuse of its own trucks and roads, the 11th Court finds the district court should have reached a different result. Summary judgment was not appropriate on this issue, which required evidence of intent, unless the county also conclusively established that it did not know that the specific property damage claimed by the residents was substantially certain to result from its actions. OPINION:Arnot, C.J. Arnot, Wright and McCall, JJ.

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