The legal battle over Texas Central’s proposed high-speed rail between Houston and Dallas has begun. In a lawsuit obtained by Bisnow, Texas Central Rail has filed for a temporary injunction against landowners attempting to stop examination and surveying by the rail company on their property.

The high-speed rail between Houston and Dallas was destined to be a contentious legal battle from the outset. No matter the route, it will pass through dozens of private parcels of land. While many expect the eminent domain issues surrounding the project to be the real battle, it now appears early shots are being fired over surveying.

Defendants have denied TCR officials entry to their property to survey. TCR claims it has the absolute statutory right to examine and survey real property. By law, TCR is not required to provide notice to landowners or seek permission for surveying. In court documents, TCR says it sought written permission before entering property anyway in an effort to respect the private property rights of landowners. Playing nice hasn’t worked out for TCR and now it's seeking a temporary injunction to leave no doubt about its right to enter defendants' property for surveying.

In the lawsuit, TCR claims two separate statutes provide it the power to conduct the necessary surveys: Section 131.013(b) and Section 11.051(a) of the Texas Transportation Code. TCR also makes the case that since it's vested with the power of eminent domain, it has the right to conduct surveys and be awarded injunctive relief. TCR claims there has not been a single case in which a condemning authority was denied injunctive relief to conduct surveys.

Prominent Austin-based eminent domain lawyer Luke Ellis (who represents the Harris County property owners) thinks TCR's condemnation authority isn’t that simple. He tells us since TCR is not government affiliated, it’s technically condemnation, not eminent domain. By law, condemnation is subject to four restraints: public use, public necessity, just or adequate compensations, and due process.

Luke says there’s also a legitimate question as to whether rail statues on the books apply to high-speed rail. The statutes were contemplated and written with freight and low-speed passenger rail in mind. As Texas Central has said itself, it's a whole different kind of rail operator. Luke believes those guidelines' ability to govern HSR are questionable.

State Rep. Byron Cook (R-Corsicana) says the decision on whether to grant HSR eminent domain power is one that should be made today by the legislature. It should not be labeled into a definition created over 100 years ago to deal with a very different type of railroad, in a very different time in our state's history.

Another major issue facing TCR is a potential public use challenge. Public use is difficult to define. No hard and fast rule has ever been drafted; instead, each case is determined on its own merits. A 2005 statute tightened the definition but exempted transportation projects from the update. The price and accessibility of the project will have to be examined to determine the project's public use potential.

The battle over surveying rights is the first in what will likely be a long legal war. Texas Central knew it would face firm opposition and tells us it's prepared for the ensuing issues. A rep for the firm tells us the lawsuit isn't delaying its calendar at all, and it'll break ground next year on schedule.