Patch of wildflowers blossoms into legal dispute

By Steve Korris | Nov 21, 2011

Cultivating flowers along a road might count as free speech, but a road crew can cut them down anyway, Ninth District appellate judges ruled on Nov. 17.

Cultivating flowers along a road might count as free speech, but a road crew can cut them down anyway, Ninth District appellate judges ruled on Nov. 17.

They affirmed San Jacinto County District Judge Robert Trapp, who enjoined George and Suzanne Russell from interfering with workers mowing their wildflower patch.

"To the extent the injunction could be interpreted as a restriction of protected speech, we conclude that it is a reasonable restriction on the time, place and manner of such speech," Justice Charles Kreger wrote.

He wrote that "while the mowing of the roadway easement certainly has an aesthetic purpose, it is also a matter of safety for the driving public."

Justices David Gaultney and Hollis Horton agreed.

Kreger wrote that Suzanne Russell once called police to arrest mowers as trespassers.

"On another occasion, employees discontinued mowing to avoid being further harassed by Mr. Russell," he wrote.

The Russells live on Waterwood Parkway, at an entrance to Waterwood subdivision. The county obtained an easement over the parkway in 1979, and maintained it with contributions from Waterwood Improvement Association.

The Russells own title to some of the property that is subject to the county‟s easement. They did not want the easement mowed but desire it to be left in a more natural state. According to the evidence, the Russells' primary concern was the mowing down of their wildflowers.

The association paid the Russells rent for placing subdivision entrance signs on their property until 2008, when the lease expired.

In 2009, the association notified the Russells that it had entered into an agreement with the county to maintain the parkway. As part of that agreement, WIA intended to maintain the plants at the entrance signs and mow the easement.

"In an effort to alleviate the Russells' environmental concerns, WIA stated that it would preserve the areas where wild flowers and new trees were growing in the median, and delay mowing until the wild flowers had gone to seed," Kreger wrote.

"In addition, WIA would avoid cutting new trees growing in the center of the medians," he wrote.

Nevertheless, the Russells continued to confront WIA employees attempting to mow the easement and sent constant emails to WIA.

The association sued for an injunction this June, and Trapp granted it.

"Defendants have set upon a course of action to interfere with the rights of WIA under the agreement," he wrote.

He enjoined them from physically going on the easement while the association fulfilled its contractual obligations.

On appeal, the Russells claimed the county and the association took their property in violation of the Texas constitution.

They claimed Trapp violated their speech rights under the First Amendment to the U. S. Constitution.

They claimed he failed to define interference.

Kreger, Gaultney and Horton wouldn't even hear a claim of improper taking.

"An inverse condemnation suit is the proper vehicle for a landowner to attempt to recover compensation for lost or impaired rights resulting from the government's unreasonable interference with the landowner's rights," Kreger wrote.

"The Russells have not pleaded a takings claim or brought suit for inverse condemnation," he wrote.

"A landowner cannot exercise his fee title rights in a manner that interferes with a government's easement over a public roadway," he wrote.

He wrote that if the injunction restricted speech or expression, it did so reasonably.

"The injunction does not prevent the Russells from continuing to send emails or otherwise expressing their environmental concerns to WIA in a manner that does not interfere with WIA's performance of its contractual obligations," he wrote.

He found no mystery in the meaning of interference.

"Several of our sister courts have upheld temporary injunctions restraining a defendant from interfering with activities or relationships of the plaintiff," he wrote.

"We conclude that the trial court's order is sufficiently specific," he wrote.

Travis Kitchens of Onalaska represented Waterwood Improvement Association.

Hans Barcus and Bryan Cantrell of Huntsville represented the Russells.

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