*1 to be holding agreement to “suc- Our agreements.” The reference ten be compliance Rule 329b would agreements” supports (3) with cessive written Pena, S. Weatherly v. consistent with agreements are appellant’s position that the Antonio (Tex.Civ.App. recog- appears to W.2d 434 together. be This read —San In e.). n. writ ref’d r. are a succession agreements nize that begun then recessed hearing compels was thing and the conclu- of the samе parties January agreement of the until togeth- be should considered sion the motion was 1959, and the decision on purports be an agreement third er. The is, to postponed to a “later date”—that agreement; amendment of the second 17, 1959, as suits January or thereafter agreement. a part be read of that should The mo- judge.” trial of “the agreement to the first convenience The refers second January on tion heard and determined agreement, reading and a of same leads agreement to held the be an amend- 17. The court the conclusion that postpone. compliance 329b. agreement the first with Rule ment of Having docu- thus considered three not be inter opinion should Our ments, the decision whether agreement holding an preted specifically postponed day a certain specified date postpone hearing agreements. appellаnt The set out The factor decision that date. limits hearing by postponing contends ex controlling here is the that we find implication postpones the decision. We comply with subdivision pressed intent to recognize logic of this contention of the rule. however, agreement postponing merely appear to “hearing” alone would not appeal is over- to dismiss motion comply requirements of rule. with the ruled. case, There another consideration agreement stated that however. first “pursuant to being
it was subsec- entered post- 3 of
tion Rule 329b” went on
pone “hearing” date. to a certain postpone- only deals
Subsection 3 with motion.
ment the determination of the interpret expression of in- this as an Katz, CARTER, Ben also known as Ben 329b and es- comply (3) tent to with Rule al., Appellants, et hearing as the date of- tablish the date of interpretation This determination. wording language al., Appellees. is consistent with the Quincy LEE et Otherwise, agreеment. the reference No. 7510. mean- 3 of the rule would be to subsection Appeals Court of Civil ingless. construing an instrument Beaumont. interpretation adopted be that best should Nov. 1973. parties the intention effectuates Rehearing seemingly that which will harmonize incon- Denied Dec. phrases. possible, If
sistent clauses
interpretation should be which will agreement.
annul a Fox Lewis, (Tex.Civ.App.— n.
Austin writ ref d r. Mercer v. e.);
Hardy, 444 (Tex.1969). S.W.2d 593
agreements postpone be must construed
the decision to the date set out. *2 unreasona- to be
permitting such diversion reasonable jury also found the ble. The cash market value “of Plaintiffs,” im- belonging imme- mediately prior diversion *3 diversion, $5,000. diately after thе was Oliver, Warncke, San Oliver & R. James Antonio, appellants. for the en- of action arose before cause This which actment the Texas Code of Water Walker, Hubbard, Howard C. C. Jackson August became effective Lewis, Foster, Langley, Ban- Gardner & time of 7589a, at the supra, was effect ack, Antonio, appellees. for San of, complained and read in the diversion part as follows: STEPHENSON, Justice. any shall hereafter be unlawful “It damagеs This is an action for to land di- private corporation to person, firm defendants, caused diversion wa- surface the natural flow of the vert Quincy Quincy Company, and The Lee Lee man- in such ... ters State of natural flow surface water onto anoth- damage property of ner as plaintiffs’ The land. of Antonio San di- er, so by the overflow of such water was also named as a defendant. Trial was , such in all . . and that verted . by jury was for de- rendered rеme- injured party shall have cases upon parties fendants verdict. including dies, equity, and in both at law will be referred to here as in the were . .” thereby. . damages occasioned trial court. recently upon some of passed This court The record shows the are the here, questions before in well- us owners of some 96 acres of land located Keith, Lang- opinion by written Justice San Antonio. The Lee own defendants Kraft, (Tex. ford v. immediately plаintiffs’ land east of Beaumont, 1973, pending). Civ.App., writ property developing and are and have been opinion reads as follows: A Mary such land into subdivisions known as Mary development Mont. It was lands were Developers’ all of “Not Nine, by placing street, Mont curbing and and, plaintiff; as to higher than that open water, carry drains to surface lower plaintiff was the land of gave controversy. rise to this Plaintiffs ‘must receive Developers, that of than allеged that defendants diverted the Lee flowing naturally the surface waters natural flow of such surface onto water estate, yet it is a higher thereon from
plaintiffs’ causing damage land com- ex- waters required to receive these plained of in violation of Ann Vernon’s condition, untouched cept in their natural Civ.St., Art. 7589a. Thom- Bunch v. by the hands man.’ Quincy jury as, found: defendant 121 Tex. 49 S.W.2d Company, streets, Lee in constructing ‘[ljand subject Plaintiff’s (1932). water, drains, improvements, nat- tо receive diverted no servitude ural diverted flow surface as to dam- has been water natural flow of which age belonging “the Higgins Spear, to it.’ Plaintiffs”; pri- that such per- was 15 S.W.2d manent; city and that the to have prietor higher action of the land ‘is entitled land, permitting such diversion was intentional so surface water flow to the lower negligence and a proximate also its usual long cause as the water follows However, damages question. quantities.’ аnd runs its natural course jury find the Buckman, failed to action of the Samples Amarillo, 1952,
285 (Tex.Civ.App., apartments. error high-rise That cost ref.).” taking care of the diverted water would have to be subtracted from the total value. points Plaintiffs have challeng- of error ing findings witness, that the Bain, value Defendants’ Henry testi- the property $5,000 “of question” only fied that plaintiffs’ one-half acre of both before and after the diversion. We nineteen acres would be flooded because of pass points the no evidence consid- witness, the diverted water. Defendants’ ering only Love, the evidence favorable to such Albert Jr., testified: acres 49.25 findings, insufficiency and the plaintiffs’ land high land 46.6 weight points by considering the entire acres building was below lines. That the record. points Plaintiffs also of er- fair $8,850 per market value was acre ror ($5,000 answers for the $12,500 low land and *4 damage issues are in irreconcilable conflict high the land) for a value of total jury findings with the $848,000. that defendants had That the damage maximum to damaged plaintiffs’ permanently. land plaintiffs’ land because of water diversion $2,500. All of the testimony in case this shows big problem lies in at- that defendants Lee the diverted flow of tempting just to determine the trial what the surface water so that more water court in the had mind in its submission of plaintiffs’ drained on land would have than damage issues jury. to the The term used naturally. witness, Harvey Plaintiffs’ Liv- “the to the belonging esay, testified that an additional 41 acres plaintiffs” impos- is so indefinite that it of defendants Lees’ land diverted onto plain- sible meaning. to be sure of its plaintiffs’ witness, land. Lee’s Defendants petition tiffs’ showed that were Bain, Henry testified that acres was di- approximately the owners acres of plaintiffs’ verted into wit- land. Plaintiffs’ land, damaged that such land had been ness, Kurz, testified the diverted Joe They the diversion it. of water acreage was a little better 25 acres. than alleged “property” that their had been greater following approach damaged Plaintiffs used the excess of $500 proving prayed punitive damages. damages: their for actual and that 19 acres out proceeded show how of the southeast acre Plaintiffs then of their 95.82 corner would take the wa- high density, tract was best much it cost to care of suited for putting in high-rise, housing and com- ter them both multi-family diverted purposes. providing fill lined drain- mercial That of the di- dirt and concrete because 57,000 yards age so be used channels that 19 acres version water cubic could $75,000 purposes at a cost for Plaintiffs fill be needed outlined above. would prepare land That 19 acres purposes. for those then offered evidence to show the drainage $6,000 per concrete lined would be had a a total channels value acre for $114,000 taking neеded because of the diverted water at a value of less the cost of $42,975. every total cost of time it That care of the diverted Defendants water. sufficiently put only rains gut- then offered water evidence show Nine, Mary plaintiffs’ ters Mont di- be water will be acre of land would one-half plaintiffs’ verted onto That water because of water. land. flooded the diverted standing plaintiffs’ will be on land to show because Defendants also offered evidence diversion, perhaps plaintiffs’ a dozen times a land acres of had 49.255 year acre, from eight high $12,500 six to or per hours. That the 19 land valued at out $615,000 acres southeast corner a val- and 46.6 acres of land valued low $6,000 per highest $5,000 per acre, ue of $233,000 acre at total and its high-density, $848,000. best use would be for medium value of That defendants’ wit- water, contrary are diversion of the damage to the maximum testified ness also weight preponderаnce $2,500. plaintiffs’ land was manifestly unjust. evidence and come to the conclusion have We ap- turn to that We now in the dam of the term used that because peal pertaining judgment rendered inquired describing the land age issue City of Antonio. As stated San it about, ambiguous, that this verdict above, action of the found just what to be certain impossible inten- city permitting the diversion was to do. are aware jury intended tional; negligence proxi- that was and a аmbiguous try interpret we should question. mate All cause uphold verdict so pro- evidence shows Savings Loan First Federal & trial court. tested defendants Lee and Sharp, of Dallas v. Ass’n city that all defendants were aware that Also, should that the record (Tex.1962). Mary some of from the water Mont Nine be examined in an effort ascertain plaintiffs’ would be diverted land onto and we jury’s done, intent. This we normally which would not have flowed the cer arrive at a conclusion with cannot fact, upon it. foregoing were issues tainty required of As was said us. city. not attacked defends Moore, Moore v. S.W. appeal grounds on *5 found and failed to find that no a “As the true construction of such city’s action was unreasonable. verdict, neither the court nor this lower specu- city City The cites of Houston v. Re [Appellate] permitted is
court nault, 322, Inc., (Tex. is- all the S.W.2d The verdict must find late. 1968), support position its that the latter pleadings language sues made is good. of its defense This state does of mistake. It which not admit ment is made that not case: should be end and the continua- controversy.” tion of intentional, “Where the invasion lia- is bility depends upon Also, whether invasion in Northern Traction v. Texas Co. Co., unreasonable.” Armour & 288 S.W. Tex.
(1926): a alleged In that case cause of City against of Houston on action regard being as am-
“We
verdict
three theories:
biguous
preclusive
to an extent
of that
certainty
ought
part
of ad-
which
be a
property
their
(1) That automobiles on
ministration of the law.”
damaged
public
had been
use
meaning
also,
within
of Art.
Company
§
See
Wanda Petroleum
v.
of
Reeves,
Constitution
Vernon’s
(Tex.Civ.App.,
knows are or are sub- considered: his stantially certain to result from con- involved; Fundamentally, (a) the unreasona- the extent of the harm duct. KEITH, (concurring and dissent- harm in- of the (b)the character Justice ing on rehearing). volved; in the reversal of the trial I concur law at- sоcial (c) the value which holding of judgment court’s because of the enjoyment of type taches to the use findings majority “that the invaded; that the of ‘the value suitability particular (d) the of plaintiffs’ (whatever that belonging to the char- enjoyment use or invaded to the $5,000 meant) both be- may have term locality; acter of the water, diversion of the fore and after the pre- contrary weight are to the person harmed (e) the burden on the ponderance manifestly of evidence and avoiding of the harm. unjust.” (p. 929) n n n n n >;« my from I now withdraw concurrence utility determining the conduct “In of part opinion finding invasion of which causes intentional language rendered issues enjoy- another’s interest the use and support jury’s ambiguous too verdict land, following factors are ment some the reasons out- important: City of Antonio in its lined San law at- (a) social value which the for rehear- assignment first in its motion purpose рrimary taches to plaintiffs’ issues and ing, viz: These were conduct; objected to such issues neither requested other issues in different nor suitability to the (b) of the conduct form; plaintiffs point appeal had on no locality; character verdict or complaining ambiguity impracticability preventing or (c) and, issues; of such such of the form avoiding invasion.” effect, places holding, in the burden upon by relied to see that issues defendants all the evi considеred support a recov- plaintiffs are sufficient to utility to the dence before us as ery. city’s gravity conduct land, plaintiffs’ and we harm hold objections no Plaintiffs made find—that the failure consequently, objections there- charge; all permitting action of the the diver An Rule 272. to are deemed waived under *7 contrary sion unreasonable—is to the ground recovery or defense independent great weight preponderance and of the evi by conclusively established the evidence not manifestly unjust. this rea and For dence or given is if issue thereon no is waived son, above concern and the reasons stated v. Insurance Co. Glens Falls requested. ing damages, action as to the the cause of 529, (Tex.1965). Peters, 531 386 S.W.2d and remanded. all defendants is reversed reasons, plaintiffs not con- do obvious For damages was the amount of tend issues No other conclusively. established No definition of “unreаsonable” by plaintiffs. requested given or were given in connection with the issues. trial, Upon the be incumbent new will Furthermore, a jury, a trial to being this explan upon the trial court such to submit a motion required to file plaintiffs were atory and definitions as will instructions 324, re- were under Rule new trial enable to determine which ground on specify each quired to of unreasonableness under authorities Furthermore, under Rule 320. is founded. herein discussed. not distinct- ground error 374, any Rule triаl and remanded. for new Reversed motion forth ly set considered as having been waived. police power. exercise of the 62 C.J.S. generally, Wagner Foster, 333, Municipal Corporations 83, 161 Tex. p. (1949). § (1960). S.W.2d 887 In addition to powers the broad con- 34, V.A.C.S., ferred Art. § However, as opinion, I read the I do not legislature 974a, adopted V.A.C.S., Art. find that reversal was ordered because of delegating municipalities police pow- the ambiguity charge in the or verdict. er to control platting of subdivisions. The reversal as to Lee rests a solid Section 4 of the last mentioned statute independent findings basis—the on the gives power broad municipalities to the contrary issues are approve disapprove plats pro- such “to weight preponderance of the evidence. health, safety, general mote the morals or However, record, my- for the I dissociate safe, community, welfare аnd the part self from opinion or- orderly development healthful said ders a reversal because of such claimed community.” ambiguity; yet, I concur in the reversal appellee as to Lee Indeed, long adoption before the of Art. single ground stated in paragraph. 974a, Supreme upheld our Court had requiring charter and ordinance of Dallas I dissent from the order overruling limits owner within the motion by City for rehearing filed of San abutting alleys to cоnform streets and Antonio; and, particularly, I sustain would police power. being within the Halsell v. assignment the fourth therein: Ferguson, 109 Tex. S.W. right disposed (1918). Court “The Court erred as a matter of law compensation in this manner: holding that City liability incurred solely City’s “Coming police power, ap- based on the approv- within acts ing plat, pellants regula- a subdivision have to to these which acts were submit tions, legitimate, regard compensation." furtherance of a lеgisla- without tive, governmental emphasis police (Id., supplied) function specifically provided state stat- legislative delegation This is broad ute.” police power and its “rests exercise largely governing in the of its discretion is, course, San Antonio a Home Rule body.” Kimbrough Walling, 371 City rights with self-govern- full of local (Tex.1963). Davis v. ment and any power free to exercise Taylor, 123 Tex. denied it general constitution or the (1934), Court said: XI, statutes. Constitution of Art. § 5; 1165, V.A.C.S.; .2d, Mu- that, Jr equally if “It well settled nicipal Corporations p. 642, seq. et § power granted city, to a exercise thereof is within the discretion of partakes legislative city, and of a nature. *8 legislature While primary regulate A court will not the exercise of plenary power regulate public roads power granted, a it is expressly unless streets, may delegate power way clearly exercised in such a to be municipalities. counties or City v. State power and an evasion abusive Austin, 348, 737, 160 Tex. 331 S.W.2d 741 thereof.” Municipal (1960). planning designed preserve public by City health and welfare In the famous case of Lombardo v. 475, promoting systematic Dallas, 1, an harmonious and 124 Tex. 478- 73 S.W.2d municipal growth police zoning delegated in accordance with the under (1934), needs community upheld notwithstanding of the whole and is an its ex- power was City the value of by the lessened ercise Quoting from a property. complainant’s CURRY, Apрellant, Maurice W.
text, Cureton said: Chief Justice “ GIRARD, Appellee. Henry L. subject property held ‘All police power; nor valid exercise No. 17457. merely regulations unconstitutional are Appeals of of Civil Court upon operate restraint
because Fort Worth. person property or private rights of Dec. in- to individuals. The result loss will deprivation of such loss is not a fliction process law; property due without upon police power
the exertion prop- scope, its in a
subjects lying within manner, process of due
er lawful police Moreover, regulations do
law. taking under constitute a domain; com- right of eminent
pensation required is not to be made proper as is
such loss occasioned ” police power.’ (empha- exercise omitted)
sis in text
There is no attack the constitution- the au-
ality of 974a and I have cited holding
thorities that the statute is a valid delegated police power of the
exercise of circumstances, these the con-
State. Under compensa- require
stitution does not paid ex-
tion be for loss occasioned Spar- police power.
ercise of the State Industries, Inc.,
tan’s Richards, 157
(Tex.1969); State v. Tex. S.W.2d approving plat of the subdivision question, City exercising delegated
police power any damages re- therefrom are under
sulted not recoverable absque injuria
the doctrine damnum —a Louis, F. injury. loss without an St. S. & Shaw, Ry.
T. Co. v. 92 S.W. Any damage
30 (1906). sustained vio- consequent was not any right recognized by
lation of Lea law.
County Cooperative, Electric Inc. v. Plains, (Tex.Civ. e.).
App., Amarillo, ref. r.n. error
I affirm the of the trial would
court as to of San Antonio.