*1 LEVEE DALLAS AND COUNTY OF CITY et al. IMP. DIST.
CARROLL.
No. Appeals Texas. Civil
Court of Dallas. 6, 1953.
Nov.
Rehearing Dec. Denied *2 appel- placed property by on the appeal judgment
lee. This is from noth- appellee appellants take favor of suit. by their filed a motion appeal appellant be dismissed because the ap Flood District has filed Control peal The District was Flood Control bond. Legis created the Acts of 49th lature, 619, Chapter 355, Vernon’s 8197f, following Section Ann.Civ.St. provides gov of the Act that it shall be a agency body politic ernmental and with powers government. 2 de Section powers, and rights, privileges, scribes the obviously of the functions District. It improvement water control and district and give appeal. does not have to bond on 2276a, V.A.C.S. The motion dismiss overruled. Trinity formerly in a River flowed lay
southerly direction in a channel which immediately west of the downtown section Dallas, county hard large courthouse itself. Not ordinarily a Trinity stream as rivers go, bad had.a bursting heavy habit of bounds a, flooding an area mile rains about wide lying between the business section of part and the the city Dallas known as Oak Cliff. part towas reclaim of this bottom the construction of levees and other Gray, Thomas, Bowyer, Crozier & Har- improvements that the Levee District
ris, Dallas, for plan created in 1926. A of reclamation was Zumwalt, Dallas, Lee Burt Barr and prepared, adopted, approved, filed, J. appellee. required by Then the statute. course of the was changed River that the river flow was made to between levees a new DIXON, Chief Justice. straight channel one-half mile west City and of Dallas Appellants, properly old channel. To drain the re- land, Improvement gates Levae claimed sluice were conduits District, filed suit in pumps placed Control Flood constructed at suit- appellee Roy try title trespass places drainage able so that surface water of a tract of land pushed through Carroll could be the levees into the old bed of the floodway lying within between the new levees. And to corner Industrial drainage near the Boule- in the River aid further re- Street land the and Corinth of claimed old river channel was set vard They mandatory sought also in- aside as a basin to hold Dallas. excess require if and when drainage remove en- water junction water, alleged and obstructions the levees to accumulate outside faster than it croachments ¡be ago, built new on it and used improvements into the through pumped could objections- com- without until project was floodway. The main the suit was filed. pleted maintenance but the *3 is a continu- drainage facilities levees and on Based the Court findings, above the responsibility. Appel- these reached conclusions law: of the prior to the date of years About seven lants are not authorized to tres- maintain privately trial, renting appellee began pass try only to title the since river adjacent to the old property owned possession is the right assert distin- of as year about a renting for channel. After guished title; from right appellants’ of the the onto half, appellee over moved and a possession right by of had been abandoned lies east, which land to the adjoining land prior entry lack of use to defendant’s there- channel, the old river entirely within on; property fee title in to the is not of Texas. belongs to the State therefore pellants them; prin- or either of under the Ap- controversy here. property in is the ciples demand, estoppel pais, stale of or in tract and pellee garage on the built a appellants laches are not entitled to recover for premises since and used property. repair He does his automobile business. nor has ever property, claim title to quote We 783, R.C.P., from Rule He concedes paid any for its use. rent pertaining trespass try to title: “The he is property all which of * * * petition shall state: in (c) The River. channel lies in the old .of plaintiff terest which the claims buy from the of In it State 1950he tried premises, simple whether be a fee it or other hot successful. but was estate (d) plaintiff That the was premises or entitled to find- The trial court made the possession.” such Under this Rule and the Both are munici- ings of fact: repealed based, statute on which it was purpose of pal corporations created for the 7366, appellants were entitled to maintain maintaining 'and constructing and levees trespass try action of though they (cid:127)an title improvements subject other to reclaim land claimed of right River; as dis to flood conditions of the tinguished ownership of fee title. organized the Levee District was Culpepper West, v. Tex.Civ.App., 128, 110 S.W. by Chapter 26, Title R.C.S. virtue of 231, 2d 135 Tex. 140 Ap S.W.2d 166. 7972; the art. Vernon’s Ann.Civ.St. pellants’ point fourth appeal of is sustained. Flood under and virtue of 1945, Chapter Legislature, Acts of 49th control, purpose being We think trial finding court’s store, preserve, support and distribute flood waters abandonment is without evi in the dence, and is contrary statutory within the boundaries of Levee District. law. filed, Appellants approved quote 7467b, prepared, and had from'Art. R.C.S.: approved Board of Water Commission- plan State Wherever an provides plan provides reclamation ers reclamation a bed or channel storage used the old river bed should for a river or stream shall be used for the surplus water; property storage or surface here transmission waters, of storm involved is within the metes and 'of such fact shall be bounds conclusive evidence that plan; bed as old river described in the bed channel has not been aban- (Emphasis storage many for water doneel.” was not used supplied.) court years prior undisputed to defendant’s found and the be- occupancy evidence shows approved naturally higher,, plan cause it is has been reclamation here mark; provides high filled in above water involved that the river bed old property title do not claim shall be used for the storage other than of storm storage purposes to use it for waters. We therefore hold that aas matter plan; provided in of law it has not been the reclamation Appel abandoned. sixth, upon entered the land about lants’ fifth and seven are sustained. 310 space record In the interest we shall of time and ample evidence There merely holdings, shall have been discuss but channel parts of old river cite the cases: v. persons Cox unknown filled times, Dist., 258 Imp. Tex.Civ.App., find Dallas Levee but we dump ground at as a used e.); Ray (writ S.W.2d v. the court’s ref. n. r. whatever
no evidence State, Tex.Civ.App., (ref. herein sued S.W.2d the' finding ; Sheppard m.) it w. because water used for Dist, Tex.Civ.App., Appellants’ Levee S.W. naturally higher ground.” “is 2d 253. sustained. point is sevefith *4 opinion undisputed In our appellee’s pleadings under the read have We them a facts in find in this case are entitled to times, but we do not several any judgment find in of Neither do we their favor for estoppel. of estoppel mandatory the land in question for a record to evidence in the injunction pled. Anyway, requiring appellee we think that as to remove it been had undisputed placed facts whatever he may under the obstructions have of law a matter premises. ap on case, doctrines of es- presented in We therefore sustain this demand, pellants’ first, second, points. are laches and third toppel, stale appellee.
available The great part record discloses that if a in all of the dirt fill the old river bed munici are Both of placed now by there In maintenance and pal corporations. by persons appellee. Appellee other than they protection of the channel area constructed the garage building, and from capacities, governmental acting in their are automobiles, time time has moved auto- capac proprietary private, their or not in parts, mobile and a few things other onto 16, 59a, Ann.St. Art. Vernon’s ities. premises. mandatory injunction The Const, Texas; R. Chicago I. G. Co. R. & of require him to remove the build- Control, etc., County 123 Water v. Tarrant ings other arid which belong to true, being That 73 55. Tex. S.W.2d him may or which he placed have on the powers governmental the exercise of property himself, may or which estoppel through them may not -lost to placed purported authority. there under his have benefitted shown to unless are Angelo v. of San the transaction. reversed, Judgment of trial court is 308; Deutsch, 126 Tex. 91 30 S.W.2d judgment is rendered in favor of 114; In Tex.Jur. Tex.Jur. pellants of the land involved ** * estop- an it is said: Am.Jur. pel herein, and for mandatory injunction a as. if such will embarrass a asserted above indicated. capacity municipality governing its prevent operate to it exercis or body Rehearing On Motion for police wrongful power. Neither a We shall not separately upom comment offi unauthorized act of municipal nor an twenty-six alleged points each of the estops municipality. of' agent cer More presented appellee’s error error, motion for re- over, mistake, part laches on the of; hearing, but shall discuss the substance municipal officer cannot be made the of a points. principal estoppel city if of an basis impeding estoppel will result the conduct that we holding- erred in municipality.” public affairs See that the Flood Control Dis- Nacogdoches County, Tex. also Jackson a water improvement- trict control and Civ.App., 188 S.W.2d district, give hence does not have to bond on of Dallas Levee Im- appeal. provement party has been a to sev- description legal in which its lawsuits status has Our District is probably
eral judicial subject faulty in nomenclature. consideration. Nevertheless been we- “ * * * pro- Q. part -the within And the District comes all believe is, 2276a, there, were are occupying is whol- V.A.C.S. whatever visions of following ly within the old channel of to this conclusion guided Yes, in the statute River? provisions among others but in the last fifteen Sup- years always in 1953 I creating the District as shown been there where V.A.C.S., 2i; Title am at.” plement to Vol. “Sec. 1. 8197f1: Chapter * * * art. fact, you Now as a matter know govern- District shall be Such in truth prop- and m that all fact politic and cor- body agency and mental erty cure is in the old powers government porate, with the River, channel * do not? * * authority to exercise with the I (Emphasis sure do.” * * specified hereinafter functions supplied.) control, storing, preservation including the and flood- of its storm and distribution toAs our statement that the land drainage of reclamation and waters and the belongs to the State of we do not *5 Sec. 6. lands. its overflowed any ground believe there is controversy. controlling the waters purpose for the * pointed * * As opinion, out in our main and its River provisions * * 7467b, 3, V.R.C.S., of Art. § tributaries it cannot be held that the old river bed has Appellee says that we erred when we been It abandoned. follows that the State ad- appellee moved onto the stated that over of Texas still owns title to it. Art. east, land, as joining land to V.R.C.S.; Ray State, v. Tex.Civ.App., 153 concedes, pellee entirely within the old is (ref. m.). S.W.2d 660 w. Since there has belongs to the State river bed and therefore abandonment, been no statute relied on controversy land on of Texas. It is the by appellee, 7467b, 1, applica Art. has no § herein. Furthermore, tion here. as him testified, self all the land he occupying is only on the statement was based not Our lies within the old river bed. He is not testimony upon the as a whole but record adjoin shown any to be the owner of land testimony as appellee himself. Here is his ing the old river bed. is Hence he in no of facts: the statement shown position 7467b, the benefits of Art. I first started out there I “A. When if even the old river bed had § been aban spot from Com- rented a Good Luck Oil doned. pany.” (Page 13.) Appellee takes issue with statement “ our * * * Q. adjoining Isn’t that finding trial court’s of abandon- Yes, number you? A. but the number-to support ment is without in the evidence and way 'will there —that is the down contrary statutory Appellee says law. he 14.) you (Page get lost.” is to find unable where trial court made “ * * * * * A. It is between me any finding. now, property Luck I rented and Good We must admit language that our was me and Good Luck. was between inaccurate. What we had reference property occupy “Q. you is not the one of the trial court’s conclusions of law. (Page 15.) It is not.” now? is, Here it as shown on 27 of the Now, Q. Roy, you Transcript: plaintiffs “If since or either of from —that would be east had property over from them ever of this moved you long there from since abandoned prior were Good it had where same your east, Luck, you building of this suit.” moved is that to the institution We amend feet, pur opinion correct, original say: about or —A. That we “We the trial court’s conclusion right.” think of aban-
1. Acts
c.
c.
as amended Acts
evidence,
7467b, 1,
Appellee
himself
donment is without
V.R.C.S.
says
statutory
that he
law.”
holds no deed or other instru
contrary
occupied
ment of
He
title.
has not
claim title
Appellee
that he does
property long
acquire
enough to
title under
saying
wrong
and that
we
ten-year
our
if
statute of
And
limitation.
pleadings
Appellee’s
do assert
he did not.
required
had
land for
testimony
from his
title. However
claim of
.length
time,
him,
it would not avail
impression
appellee’s claim
we
had
acquired by
title to State lands cannot be
had
occupying was that he
land he is
-the
possession.
Nacog
adverse
v.
Jackson
right of
possession to the
superior
County, Tex.Civ.App.,
doches
188 S.W.2d
asserted-
testimony
his
as shown
again quote from
estop-
insists that
of facts:
hé did plead
statement
pel
prayer
pleading;
of his
again
“Q.
right, about
All
state
prays
“Wherefore he
that this
in abate
there,
five
four or
when
moved
sustained,
pleas misjoinder,
ment be
’
building
in this
ago
Well,
?
I have been
exception, limitations, estoppel, and that the
of five years.
I know
plaintiff
take nothing
him
any allegation setting
We do not find
out
.five,
.you put
“Q.
years; did
About
indispensable
parol
I,did;”
of a
-claim
elements
building there?. A. .
by estoppel
of title
laid down
our
Did
ever -rent
Supreme
Bridgewater,
Court in
Hooks
now located? A. No.”
where
are
*6
122, 229
(Syllabi
Tex.
S.W.
16.)
(Page
S),
allege
IS A.L.R.
does
deed or con-
any sort of
“Q. Have
he'paid any
that
consideration to the State
any
showing
veyance
other instrument
appellants
his
to
herein for
No.”
you?
title
and to
parol
He
claim of
interest in this
an
land.
any
allege
does not
made
try
Now,
get
to
“Q.
did.
him,
misrepresentation
anything
to
or did
time, Roy?
any
.Texas at
the State of
from
to
changing
him which misled him into
his.
yes.
Austin,
to
letter
I wrote a
position to
hurt.
his
attorney
your
have
write
Did
right.”
A. That'
there?
letter down
accept appel-
Even if we
pleading
allege
lee’s
as sufficient to
title
appellee any
estoppel, it
would
avail
fee title
claim
Appellants
do
thing, for such
finds no
say
They
that the fee title
bed.
river
old
paid
evidence.
He
no consideration
Texas, under
by"
State of
is owned
his al
of Texas or
State
possession.
only right of
whom
interest
for-
leged
in the land. He
party
this
is not a
of Texas
State'
about five
apparently
However, appellee
attacks
suit.
objection
Under
without
possession by
appellants’
claim of
present
failure
the -circumstances here
mere
fee title to the
to show
attempting
is, silence,
object,
will not work an-
himself,
of Téxas.
riot the State
land is
Rochmill,
estoppel. Watson v.
137 Tex.
appellee’s claim
we
discuss
shall
Therefore
565,