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Click here for the full text of this decision FACTS:This is an interlocutory appeal from an order granting a partial summary judgment in favor of appellee, Canyon Regional Water Authority (CRWA). The trial court denied summary judgment in favor of appellant, Guadalupe-Blanco River Authority (GBRA). GBRA developed Lake Dunlap, a man-made reservoir in Guadalupe County, for the purpose of generating hydroelectric power. The parties stipulated that the lake “is a popular site for recreational activities, such as boating, water skiing, jet skiing, and fishing, and such uses are regulated by GBRA . . . .” GBRA owns the lake and the surrounding land, and is statutorily charged with responsibility for the reservoir. Under an easement that GBRA granted to CRWA, CRWA draws water from Lake Dunlap. CRWA operates a nearby pumping station with a pipeline and intake structure that links the station to the lake. GBRA and CRWA are both agencies and political subdivisions of the State of Texas. Under their contractual arrangement, GBRA sells water drawn from Lake Dunlap to CRWA, which CRWA in turn sells to water districts and municipalities in the counties of Guadalupe, Comal, and Bexar. In 2004, CRWA ran a new pipeline to and under Lake Dunlap and constructed a new intake structure in the lake. According to CRWA, restrictions on water withdrawals from the Edwards Aquifier continue to increase the demand for water from the Guadalupe River, which has necessitated this new construction project. CRWA began the project believing it already had the necessary land rights. GBRA disagreed, and sued CRWA, seeking declaratory and injunctive relief to prohibit CRWA’s construction at any location not authorized by the easement. CRWA responded that the easement agreement permitted the new pipeline path and intake location. CRWA alternatively counterclaimed for condemnation of the property required for the project. GBRA moved for a partial summary judgment on two grounds: 1. that CRWA’s new pipeline and intake structure are not authorized by the easement agreement and 2. CRWA cannot condemn the property and water rights it seeks. CRWA moved for a partial summary judgment on the ground that it had the right to condemn GBRA’s property. The trial court concluded that 1. CRWA had the right to proceed under the original easement and 2. a public necessity existed for the limited condemnation of GBRA’s property and CRWA’s intended use was paramount to GBRA’s use of the property. On appeal, GBRA asserts that, although the parties’ agreement allows CRWA to expand its facilities at Lake Dunlap, CRWA cannot do so without GBRA’s written consent and cannot do so on property not included within the easement’s grant. GBRA also asserts CRWA’s condemnation counterclaim does not satisfy the “paramount purpose” test. HOLDING:The court reverses the trial court’s judgment and renders judgment in favor of GBRA. The court remands the issue of attorneys fees. The court reviews the easement agreement, finding that the parties intended the agreement to allow an intake diversion piping to be located only upon the narrow plot of land that goes in a straight line from the pumping station on Parcel 1 to the existing intake structure in the lake. Therefore, the trial court erred in rendering summary judgment in favor of CRWA and erred in denying GBRA’s motion for summary judgment on the interpretation of the easement agreement. CRWA moved for summary judgment on a single ground: it had the power to condemn the property, a public necessity existed for such condemnation, and the “paramount purpose” test is not triggered because GBRA had not shown that CRWA’s use of the property would destroy or practically destroy GBRA’s use of the property. The parties stipulated that “[t]he water right issued by the state of Texas authorizing the construction, operation and maintenance of the dam and reservoir is owned by GBRA.” There appears to be no dispute that CRWA has a water purchase contract with GBRA to supply water necessary to be treated at the water treatment plant and then distributed to retail customers. There also is no dispute that the purpose of both the existing and the new intake structures is to transport water from the lake to the pumping station, water presumably purchased by CRWA from GBRA. The court concludes CRWA is not attempting to acquire water rights or GBRA’s regulatory jurisdiction over Lake Dunlap. Any rights to the water belong to GBRA, and CRWA will continue to buy the water from GBRA. Therefore, the Texas Water Code does not preclude CRWA from bringing a condemnation action against GBRA. CRWA’s new intake structure is located in the bed of the Guadalupe River, which runs through the bottom of Lake Dunlap. Therefore, according to GBRA, CRWA is impermissibly attempting to condemn “what the State presumably would assert is its property.” The court disagrees with GBRA’s characterization of CRWA’s actions. Even if the state owns the riverbed, CRWA may bring a condemnation proceeding against less than all the owners of a disputed easement. Also, CRWA had the right to bring a counterclaim for condemnation in the suit originally brought by GBRA. Therefore, the state’s alleged ownership of the riverbed does not preclude CRWA bringing a condemnation action against GBRA. If property is already devoted to public use, a condemning authority may not seek to condemn that property if doing so would practically destroy the property’s existing use unless the condemning authority shows that its intended use is of paramount public importance and that its purpose cannot be otherwise accomplished. The test is invoked only if GBRA first establishes that CRWA’s condemnation of GBRA’s property would practically destroy the existing use of that part of the lake it seeks to condemn. the summary judgment evidence submitted by GBRA establishes that the new pipeline and intake structure will result in a practical destruction of that part of the lake’s existing use. Therefore, the paramount purpose test was triggered. Assuming, for the purpose of this opinion only, that the new intake structure was of paramount public importance, CRWA never addressed whether its purpose could not be otherwise accomplished. Therefore, CRWA did not satisfy the paramount purpose test. Neither party submitted the issue of attorneys fees to the trial court; therefore, the trial court erred in denying GBRA its fees. OPINION:Marion, J.; L�pez , C.J., Duncan and Marion, J.J.

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