Texas Real Estate & Water Law Blog
When Government Construction Cuts Off Access to Your Property: A New Texas Court Explains When It Becomes a Constitutional Taking
A road-widening project barricaded the only usable route to a Collin County ranch. The Dallas Court of Appeals just reminded us that when the government closes off the way to your land, the Constitution may require it to pay.
Every landowner understands that the government can take part of their property to build a road. Fewer realize it can owe compensation even when it takes no dirt at all. The right to get to and from your land from the abutting street is itself a property right, and Texas has protected it for more than half a century. In an inverse condemnation case built on denial of access, the question is never whether that right exists. It is how badly the government must interfere before it has to pay.
The Dallas Court of Appeals took up that question last week in Trinity Valley Ranch, LLC v. City of Wylie, No. 05-25-00042-CV (Tex. App.-Dallas July 21, 2026, no pet. h.) (mem. op.). The opinion did not rewrite Texas access-taking law, and I will not oversell it. What it did do, on a concrete set of facts, is show what evidence lets a property owner clear a city’s immunity defense and get into the courtroom.
Inverse condemnation and the constitutional starting point
Article I, Section 17 of the Texas Constitution provides that no person’s property may be “taken, damaged or destroyed for or applied to public use without adequate compensation.” Tex. Const. art. I, § 17. Notice the word “damaged.” Texas is a “taken or damaged” jurisdiction, so a physical appropriation is not required, and damage alone can be enough. When the government damages property without paying for it, the owner’s remedy is a suit for inverse condemnation, and the takings clause itself waives the governmental immunity that would otherwise bar the claim. City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014). That waiver is only as strong as the takings allegation behind it: plead it well and immunity falls away, plead it poorly and the entity leaves on a plea to the jurisdiction.
The access right sits inside that framework. Sixty years ago, in DuPuy v. City of Waco, 396 S.W.2d 103 (Tex. 1965), the Supreme Court held that “an abutting property owner possesses an easement of access which is a property right,” that the easement “is not limited to a right of access to the system of public roads,” and that “diminishment in the value of property resulting from a loss of access constitutes damage.” Id. at 108. No physical invasion is needed. If a public project chokes off your access and drives down your value, that is a damaging under Section 17.
Where the line falls: not every inconvenience is compensable
Here is the counterweight, and it defeats most access claims. Texas does not compensate landowners for the ordinary burdens of living next to a public-works project. Noise, dust, added traffic, diverted traffic, and the extra minutes it takes to reach your driveway by a longer route, what the courts call “circuity of travel,” are injuries the whole community shares, and they are not compensable. See Felts v. Harris County, 915 S.W.2d 482, 485 (Tex. 1996). In State v. Schmidt, 867 S.W.2d 769 (Tex. 1993), the Supreme Court held that lost visibility, diverted traffic, and years of construction disruption were noncompensable community injuries. Ordinary construction delay is treated the same way: in City of Austin v. Avenue Corp., 704 S.W.2d 11 (Tex. 1986), nine months of partially restricted access during lawful, non-negligent street work was not a material and substantial interference. Id. at 12-13. If the only complaint is that the project made things harder for a while, the claim loses.
The elements: what material and substantial impairment of access requires
Compensation turns on a threshold the courts call material and substantial impairment of access. The Supreme Court set that standard in City of Waco v. Texland Corp., 446 S.W.2d 1 (Tex. 1969), where viaduct piers left roughly twenty-two feet of maneuvering room in front of a warehouse’s loading docks. The Court held that property is damaged for public use “when access is materially and substantially impaired even though there has not been a deprivation of all reasonable access.” Id. at 2. You do not have to be walled in completely. You have to be impaired in a way that matters.
Drawn from Avenue Corp. and the cases that followed it, a claimant establishes material and substantial impairment by proving one of three things:
- A total but temporary restriction of access; or
- A partial but permanent restriction of access; or
- A partial temporary restriction of access caused by illegal or negligent activity, such as work performed in violation of an ordinance, carried out carelessly, or unduly delayed.
Two refinements matter in practice. First, the test is functional. It reaches situations in which “the access for which the property was specifically intended is rendered unreasonably deficient,” even where some generic access remains. State v. Heal, 917 S.W.2d 6, 10 (Tex. 1996). A driveway a passenger car can use means little if the property exists to move eighteen-wheelers or livestock trailers. Second, the courts “first look to whether other access points remain after the taking and whether those access points are reasonable,” measured against the property’s actual and intended use. State v. Dawmar Partners, Ltd., 267 S.W.3d 875, 878 (Tex. 2008). Two rules follow: whether access is materially and substantially impaired is a question of law for the court, and impaired access, unlike circuity of travel, is a special injury peculiar to the owner. Heal, 917 S.W.2d at 9. That is what pulls the claim out of the noncompensable category.
What actually happened in Trinity Valley Ranch
Trinity Valley Ranch runs equestrian operations near Wylie and leased part of its property to a charitable therapeutic-riding center. The business depends on access for large horse trailers and trucks, and the ranch had one way in: a single driveway on McMillen Road. In late 2023 the City began widening McMillen from two lanes to a four-lane divided road, closed the segment west of the ranch entirely, and lined the eastern approach with barricades and “Road Closed” signage. To reach the property, drivers had to swing around the barriers onto an unpaved shoulder or a tight gravel detour. According to the ranch, horse trailers hauling livestock could not make it, and for stretches of time no essential vehicle could.
The City filed a plea to the jurisdiction, arguing there was no compensable taking. It supported the plea with affidavits from the city manager, fire chief, contractor, and waste hauler, all swearing that trucks and trailers used the road throughout construction. The ranch answered with an owner’s affidavit describing the barricades, contemporaneous photographs, testimony that the owners had to stand in the road and flag guests through, and evidence that the tenant terminated its lease three years early, expressly invoking the lease’s condemnation clause because the City had “restricted access on McMillen Road.” The 493rd District Court of Collin County granted the plea and dismissed the case.
Why the court of appeals reversed
The reasoning shows how much the procedural posture drives the outcome. A plea to the jurisdiction that reaches the merits is tested like a summary judgment: the court takes all evidence favorable to the nonmovant as true and indulges every reasonable inference in its favor. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). The ranch did not have to prove a taking to survive the plea. It had to raise a fact issue on one, and it did.
No one disputed that the ranch had a single access point and that the City closed the road on one side of it. Viewed in the ranch’s favor, the owner’s affidavit and photographs were evidence that construction totally, if temporarily, blocked the access the property actually needed, which satisfies the first category of impairment. The City’s own record helped: the waste hauler conceded a February 2024 missed pickup logged as “Road Blocked by Construction,” and the tenant’s correspondence tied its early departure to the closure. Because the evidence was disputed, the jurisdictional question could not be resolved as a matter of law.
The court matched the City’s two best cases to their posture. State v. Bristol Hotel Asset Co., 293 S.W.3d 170 (Tex. 2009), held that “a partial, temporary disruption of access is not sufficiently ‘material and substantial’ to constitute a compensable taking.” But Bristol arrived after a full jury trial, and the hotel kept two other frontage driveways plus two rear service drives, so it “never came close to losing all use” of its property. Id. at 173-74. The ranch had one driveway and evidence of a total temporary blockage, tested at the plea stage where a fact issue, not conclusive proof, is all the law requires. Schmidt fell away for the same reason: those owners complained of visibility and inconvenience, not a total restriction of the access their land was built to use.
The ranch’s evidence created a fact issue on whether the City’s construction materially and substantially impaired access. At the plea stage, that is all it needed.
The result lines up with the Austin court’s decision in City of Austin v. 1811 Guadalupe LLC, 684 S.W.3d 551 (Tex. App.-Austin 2024, no pet.), where closing a “slip lane” that delivery vehicles depended on raised a fact issue sufficient to defeat a plea. When a public project takes away the specific access a commercial property is designed around, and the owner has real evidence of it, the case belongs to a fact-finder.
What I would tell a client on either side of the table
For the property owner
Build the record while it is happening. The ranch survived because an owner with personal knowledge swore to what she saw and backed it with dated photographs. Affidavits grounded in first-hand observation are not conclusory, and photographs, delivery logs, cancelled events, and a tenant’s termination notice turn one account into a genuine fact dispute. Document the impairment while the barricades are up.
Tie the impairment to the property’s intended use. Generic access is not the test. Prove that the access the property actually requires, whether a horse trailer or a loaded eighteen-wheeler, was rendered unreasonably deficient. That is the Heal standard, and often the difference between a special injury and a shared inconvenience.
Plead every available category. Allege a total temporary restriction, a partial permanent restriction, and, where the facts support it, a restriction caused by illegal or negligent work, as the ranch did by pointing to the City’s own ordinance requiring public works to cause the least interference to abutting owners.
For the governmental entity and its counsel
Win it as a matter of law or not at all. A plea to the jurisdiction on a fact-bound access claim is a high bar. If any favorable inference supports the owner, the plea fails, and the better fight is often on the merits, on damages, or on the legal question of reasonable remaining access under Dawmar.
Preserve your evidentiary objections. The City objected to the owner’s affidavits and photographs but never obtained rulings, and the court held the complaints waived. An objection you never get ruled on is an objection you did not make.
There is a transactional lesson here as well. The tenant left early by invoking the “Condemnation” clause of its lease, triggered not by a formal taking but by the practical loss of access during construction. If you draft or negotiate commercial leases, look hard at how your condemnation, abatement, and casualty provisions treat temporary access impairment and adjacent public works. A clause written only for a classic eminent-domain taking can hand a tenant an exit, or a landlord a loss, that neither party priced. Access risk is not just a litigation problem. It is a drafting problem.
None of this changes the doctrine. Texas still protects the abutting owner’s easement of access, and Texas still pays only when governmental action materially and substantially impairs that right, not for the ordinary friction of a road project. What Trinity Valley Ranch reaffirms, on sympathetic facts, is that a landowner who marshals the right evidence can clear the immunity hurdle and put the material-and-substantial question where a disputed record belongs, in front of a fact-finder. Surviving a plea is not the same as winning the case, but in access-taking litigation, getting past the plea to the jurisdiction is most of the work. As with rescission and other demanding Texas real estate remedies, the claim rewards the owner who documents the impairment early and pleads it with precision.
This article is general information, not legal advice, and does not create an attorney-client relationship. Access-taking claims are fact-intensive and carry strict procedural and limitations deadlines. If you believe a public project has impaired access to your property, consult qualified Texas counsel promptly to preserve your rights.
