*1 v\ vx n showing1 some family are .com members of this Jones and of church and re municants in say
ligious body which against they now adversely. they claim (cid:127) very of these acts defendants lane and means providing gates and a property
of entering upon leaving the in question, intention to ever belie take, -use, property claim the ad-' hold and whom versely those in the record title rests. given, judgment of For reasons denying plaintiffs re- court trial controversy
covery of land the tract judgment should be reversed a'nd be here plaintiffs; cause rendered for the adjudi- trial court remanded to parties. between equities cation of the OF AUSTIN v.
CITY HOWARD.
No. 8993. Appeals of of Civil Texas.
Court Austin. 19, 1941.
Nov.
Rehearing Denied Jan. Rehearing Motion Deni
Amended e 28, 1942. Jan. d *3 O’Quinn, Atty., City Trueman Horace Randle, Morelock, Gibson W.
W. R. Williams, City Jr., Attys., Asst. T. Hart & Brown, Gideon, Powell, Wirtz, Rauhut & Austin, Jeffrey, ap- and C. B. all of pellant. Clark, Looney Cofer, Cofer & & Austin, appellee. of all BAUGH, Justice. Appeal judgment, from a based verdict, special issue in favor of Howard Austin, $15,000 against dam- nursery ages his land stock caused 1938overflow the Colorado River. land, 40 acres Howard’s which he nursery, is located operated a in the Colo- valley some River three or rado four miles of, from, the river or down east Austin, subject to overflows from In river. Austin es- plant sewage disposal south tablished tract and between Howard’s main point river. At this channel substantially river course of 2. this area That the levee around it obstructed east, to the east west to portion channel, and diverted flood the course northeastward. turns waters of flood flood plant sewage disposal The site July, 1938. south proximity to Howard’s was close acres, was waters That diversion of these line. The covered several overflow, damaged Howard’s subject land to extent also located on lands $4,000; City, nursery in order to his stock to extent completed, when $11,000. waters, erected' protect a of against flood to 12 completely it, levee around some That the 1938 un- the sur- height feet the level above precedented flood. rounding upstream or west ground. The negli- 5. That guilty dyke approximately end came *4 gence building in where as levee and point, eastward. On a and widened out did; negligence prox- it and that such approx- plant ran north side it imately plaintiff’s damages. caused imately parallel south line to Howard’s Special 6. issue No. 16 submitted to approximately and on the side it ran south you pre- jury was: “Do from find a parallel main of the river. to the channel ponderance of that if defend- the evidence the dis- made around enclosure thus dyke disposal plant sewage ant’s 1,200 point- long, posal plant feet about was levee had surrounding or not been same end, upper widening ed at or and the west constructed, occurring in the the flood approximately 500 out near the center River, July, 1938,would, never- Colorado feet. theless, approximately have caused upon the was Howard’s suit based any, damage, same if which it cause did negligent- grounds alleged that the had shrubbery?” to Plaintiff’s land and channels, flood ly constructed, in one jury answered “No.” To this issue to flow where the water was accustomed Appellant’s overflowed, first an obstruction contention embodied when river propositions 1 and is that the evidence the flood waters which diverted and caused as matter of law that from their natural channel shows river greater unprecedented, consequently lands at a flood and same to flow across his was not, God, velocity than other- act and was depth and an that the greater at a occurred, damages. causing therefore, resulting for the have thus liable wise would damage complained of. This issue to the was submitted special ex- general and In addition to instructions, proper jury under not here denial, ceptions urged general and complained of, as what constituted an defenses: unprecedented flood, against found lands, plaintiff’s due to the un- That 1. City. The evidence show the 1938 did flood, have been overflowed usual would duration dis flood because did its damage sustained same and would have quantity charge 'greater water than had built. even if the levee not been any the United flood of which States Department Agriculture (dating back were plaintiff’s damages That due 2. record; 1898) any but had it was also flood in act God in that to an area, including all of unprecedented. shown that this question was constituting land and that Howard’s City in That the erection of the disposal plant, had situs been over govern- acting and levee was in a plant 1899, 1900, 1913, 1922, 1929, 1935', flowed in capacity protect public health mental That and 1936. the approximately therefore not liable. and was were of the same floods plaintiff with full knowledge That flood, though height; facts, previous overflows, and of all duration, six was some or seven of shorter contributory negligence guilty was higher than 1938 flood. Thus the feet nursery subject on lands planting finding that warranted in the 1938 jury was anticipated should have overflows such light experiences, could, past in the ' damages.
such reasonably This anticipated. been have jury special tried on case was determining what constitutes the test which found: in answer to Gulf, issues flood. unprecedented C. & F.S. Pomeroy, 67 Tex. 3 S.W. plant built its R. Co. v. levee 1.That Kiersey, A. v. & R. Co. Antonio P. portion the flood San channel in a n 590, 86 S.W. Mistrot-Calahan River. Colorado Bridge leading approach Co., Tex.Civ. the road and Missouri, T. R. & Co. K. Bridge to such the north side of Tex.Jur., 775; 1 App., §§ 209 S.W. River, during Colorado as the existed same pp. 694-699, and cases cited. during the flood river occurring in said Appellant also contends July, 1938, injury or contributed to the be verdict an instructed was entitled to damage, any, by plaintiff’s land if suffered conclusively showed cause the during shrubbery flood? shrubbery would land and that Howard’s pre- “D. you If have the next answered damage the same suffered affirmative, ceding issue plant sewage disposal had the 1938 flood event, you in that then will answer say that this it to not been built. Suffice following: con appellant on against found issue was you “Are able to determine from Consequently this con flicting evidence. you proportion evidence before what be sustained. tention cannot injury damage, any, plain- or if suffered ,The presented re next contention shrubbery tiff’s land court to refusal to the trial lates waters of River diverted the Colorado requested special jury issues submit to the diverted, land, across said so City. prolong We shall by reason and existence of the construction opinion by discussion of a detailed sewage disposal *5 defendant’s of. them requested. Some of issues several same, surrounding the levee the or dike n werein by the issues submit effect covered by proportion what was caused or thereof requested jury, while others as ted the to the construction and maintenance such dupli were too indefinite or were either Bridge, approach; same and as road question they one citous in that embodied flood?” existed at the time of said damages land damages and both to spe such was not While defense shrubbery thereon, separate growing to the by pleaded City cially by the was raised it damage. items of entitled, evidence, City and the conclusion, how- We have reached the denial, have is its to these general under failing ever, erred that the court to Gulf, jury. C. & S. determined sues 9, submit, requested special No. as issue Tex.Civ.App., Ry. Seydler, 132 S. Co. v. F. four related reality which in embodied 453; Valley R. v. Co. W.2d Wichita were: These issues issues. Marshall, Tex.Civ.App., 37 S.W.2d 758; pre- A. P. R. Co. v. you 9. A. from San Antonio & “No. Do find 842; Gurley, Tex.Civ.App. con- 83 ponderance the evidence that 37 S.W. Montopolis Bridge p. new 1120. struction of the § Tex.Jur. leading approach to new road -and and the It is settled that one who obstructs Bridge said north Colo- side stream so as to the flood channels re- an obstruction of River created rado n thereof, cause the flood waters when of the flood waters striction to flow overflows, upon injure to flow and stream during occurring River the flood in said another, if without the ob lands of July, 1938? therein in struction, injury would not oc such you from the that Do find “B. curred, damages. Tay Bass liable v. the new existence of construction and 811; lor, 522, 90 v. 126 Tex. S.W.2d State Montopolis ap- Bridge and the road 135; Id., Hale, Tex.Civ.App., 96 S.W.2d leading Bridge on the north proach to such Tex; 29, 146 S.W.2d Nor River obstructed or side of the Colorado negligence, liability upon based but during in said river diverted flood waters Constitution, I Art. Sec. during July, occurring therein the flood Brady Cox, Vernon’s Ann.St. v. to the same cause so divert as 511; case, Tex.Civ.App., 48 S.W.2d Hale upon plaintiff’s land them to flow over Rook, supra; v. Tex.Civ. of Waco they would have different manner in a than 649, 653, and App., 55 cases there S.W.2d except for the existence of such flowed in cited. approach? bridge, road shall not undertake to review here We foregoing you have answered the “If issues. on these state- the evidence affirmative, only question in facts, in addition to numerous ment event, you following: will answer that 2,000 exhibits, pages. more than contains Briefly following summarized the facts are you Do the construction find “C. dispute: substantially without All of the Montopolis new existence different greater rate were direction at and of- lands of Howard speed they in of than but would have flowed as occurred such floods overflowed bridge by for the construction of the new 1935, 1936, was a flood There State, raising dump across running from west east channel it from north. One com- approaching Howard’s corner of the south or southeast petent very opinion engineer testified in his the lands extending over onto acres and damage little caused Howard’s sewage dis- erected its where shrubbery by City’s lands and levee or. either the plant, part which this posal into a dump; highway the elevated channel flood extended. Another caused, that such as was was attributable began at higher a few elevation feet equally highway about new con- corner and extended Howard’s southwest City’s struction to the levee around his land. across northeastward plant. its the Colorado waters of When regular first channel and River left its may While there be some con land came began to cover Howard’s decisions, fusion in seems now well side, as or downstream in from the east settled where wrongdoers, acting two as But backwater without current. wholly other, independent of each cause 1935, 1936, height river rose injuries another, each is liable floods, from the waters wrong. own its west, regular hanks river left its 538, 545, Hagins, Wilson v. 295 S. area, upstream and flowed or from this Robicheaux, Company W. Sun Oil current, slowly, compared with main 713,715; Tex.Com.App., 23 S.W.2d Wichita through these flood channels. eastward Valley Marshall, Tex.Civ.App., R. Co. v. west, upstream, or Some distance to Powell S.W.2d Salt Water Co. v. here involved is located the lands Bigham, Tex.Civ.App., 788, 789; 69 S.W.2d Montopolis Bridge the river. across Estate, Windfohr v. App., Tex.Civ. Johnson’s *6 approach highway The elevation of the 215; Baylor 57 University S.W.2d bridge was such north end of this to the Bradshaw, 1094, Tex.Civ.App., v. 52 S.W.2d floods, as those of that in extreme such 1100; Pampa Long, of v. Tex.Civ. 1938, leaving the flood waters the 1935and 1001,1003; App., Gulf, 110 S.W.2d C. & S. west, bridge above, or of this channel spread Ry. Seydler, Tex.Civ.App., F. Co. v. 132 S. highway ap- across this over and 453, evidence, The W.2d whole, taken as a valley down the river proach and eastward physical facts and circum the through over lands the flood channels shown, were, think, clearly stances we suf bridge This was washed here involved. jury ficient from the which could have flood, by bridge new away 1935 a the injuries found that a of the sustained flood, built, prior the 1938 several feet to by Howard were due other causes to than approach bridge. The higher the than old by the of its levee erection around was also raised several to it on the north plant; particularly from its the ele flood which feet so that the waters by Department Highway vation of the approach, were all had across flowed approach Montopolis Bridge. north to The converged main channel of the into the City was therefore to have this entitled pass under the stream all forced to issue submitted as affirmative defense words, bridge. In one of other by And is raised the evidence. this true by upstream obstructed channels regardless findings jury dump which highway and excess waters submitted them. issues to it diverted flowed across had theretofore holding are cases While there that where under the into main channel back clearly shows that such in bridge. was evidence to tending new There part by juries in sued, other wrong are caused show, concluded, jury could have and from which the those that doers than it is im caused waters that proportionate ascertain the they possible to than bridge higher to rise above each, plaintiff damages by is risen, not en accelerated have otherwise would anything, such to recover case bridge titled is not speed below the the current been, presented. See Tucker Oil here Co. v. than it otherwise would have faster caused Tex.Civ.App., Matthews, S.W.2d passing after beneath waters Galveston, Vogt, A. H. & S. R. Co. v. Tex. bridge stated some to “fan out” as the of the 841, Civ.App., 181 S.W. Houston witnesses, the lower & and thus enter Hanson, Tex.Civ.App., R. T. C. Co. pass over Howard’s flood channels and 375, S.W. land of the land market said land presented to cash value question relates The next before (Italics ours.) said damage land. In thereto." damages to the the measure after This jury recog- is long established and well special to 5 and submitted issues permanent damages reasonable nized to to find the measure asked were lands “for real value determining estate. And in such value said cash market purposes” im- nursery any purpose its market which value for for agricultural and immediately open after it could be must be mediately sold market before that no Appellant damages contends considered. This measure of 1938 flood. lands City. of such If use as available to Howard as restrictions made; its market pur- but that he could been have shown a value other should for have purpose have been nursery should any poses greater growing for value than for be should sus- stock, contention This and a submitted. tained. destruction value, refer- damages his would have been able highest to the market value shown. relied, sustaining this Appellee In & v. Bel Sherman Gas Electric Co. language of Chief use, upon restricted den, R.A.,N.S., 121, S.W. 27 L. 103 Tex. N. O. R. in Ft. Worth & Stayton, Justice Court, Supreme speak Wallace, 12 S. W. Co. v. ing through Judge Brown “The trial held: railway against the damages 228, a suit judge jury instructed ascertain burning grass in negligently company for property purpose value of the for the grass pasture, and numerous plaintiff's plaintiffs it, just which had dedicated be damages following The it. cases burning value, fore, just after, and such con destruction were sought there operation plant. struction The injury turf. the grass, charge was error vital issue in the must be construed there used language plaintiffs’ property case. If will sell for as discussed light the issues opera much for use with Chief involved. there the facts Justice operation as it would tion should case, following use the Stayton did, in that cease, recovery then no can be one, had for the right of not the language: “It reduction its value for use as home. injury has wrongful act an through whose law, another, purpose giving damages, land of been done to the measure the loss; and, repair property is to if the will the effect fixed for as sell much may land if as would before the have on the injurious act inaugurated, business was loss purpose than there This no other used for some which was repaired. *7 be in value to be ap not applied or desired to would it owner; proof fact, be, right exclude the if it is the it so that but plied by its especially damages pur the lots were his measured valuable for have owner to the poses of a home; the land but such injury the to evidence would by the extent vary which the purpose to he not rule law that any lawful the difference used for it, appropriate any desired to in the for appropriated market value use must be the had adapted. Worth recovery.” it, it measure or which [Fort to Railway Hogsett, Co. v. Tex. D.& C.] Substantially the same rule an- was not rest 687, 365. It does 4 S.W. [685], by Judge Boyer in nounced Williams & Lu- say to the owner: wrong-doer to with the Co., cas v. St. Louis & S. F. & R.T. purpose a for which your for land Use See, also, S.W. 441. Lone it, it to and will use you do desire not Hutton, Tex.Com.App., Gas Co. v. Star you that use as for it to as valuable be was before 19; Brashear v. S.W.2d Martin-Wilder another.” Co., Tex.Civ.App., 102 S.W.2d overruling was in language used Tex.Jur., that p. But § Sec. Am.Jur. company railway that p. contention the it turf made less diffi- destruction any evidence, Under such rule in In land cultivation. other put cult to City by such as that offered cross pas- words, his would convert if owner Howard, as examination to the exist farm, injured. was not he Man- into a ture ence, marketability and value of commer point not in here. ifestly case is that building deposits on sand and injured, cial beneath lands, which not been said had plaintiff’s allegations, The seg upon would bear which market value of damages damages .from regating to land land, would be admissible. said shrubs, “plaintiff’s were that land to $10,- presented aggregate question in the sum next damaged The is whether was jury properly in the court being the on the reasonable instructed difference nursery stock, Mary al- tion he damages testifying to had made for in the issue of Dugan pat.” have been total trial. He had it down This plaintiff to leged argument the rea- jury objected jury was to find was to in- asked The loss. growing “though of same structed not to consider it cash market value sonable in the field immediately may per- before and immedi- other trial have been theatrical flood, instruction formance.” with the There was no evidence ately about after Mary determin- “is Dugan at trial or that was a the- such value arrived it that performance. would sell atrical Nor do it ing nursery what stock we think lots, incident, in convenient not such an or historical nor so estab- in bulk objected to this on price.” lished in current literature or common retail the others, among knowledge average that as submitted ground, jury an would that be permit jury wholly presumed story fail to to the By fiction “such issues to know that cultivating, caring reference, .for make allowance trial moot. such for, for market marketing preparing undoubtedly to in- counsel meant leave the nursery delivery practiced such stock.” ference had that the witness his testimony pat” down in the in- and had “it The measure case; clearly improper stant discrediting manner of is, the properly That reasonable submitted. witness. the in- Whether immediately be market field value jury struction court to the to disre- injury. immediately after It fore gard damaging it removed whatever effect arriving at that value of method of is the may had, is, course, to difficult City complains, urging that the which determine. In view another need trial it crops yet not ma applied growing rule recur, not further of it consideration applicable here. The rule be tured would unnecessary. here crops is relating growing value appellee counsel for Another crops given time at a is ar of unmatured also, jury argument stated crops by determining what rived at paid per had acre (a matter not made, for, $175 have sold would have and would the land on its sew evidence) which cultivating, gathering the cost of less disposal plant age Upon was located. dis types marketing same. As to such error, covery of such counsel subsequently July, no market in shrubs as had requested the court himself winter, instruct the such a rule be marketed in the must jury statement, not to consider such which apply. clearly testimony But would was, think, the court did. This we suffi practically was that all of the this issue cient to adverse remove effect on value nursery stock involved had market statement, faith, made good which the at related to the value July; and time may have had. This likewise need lots in bulk or in convenient on the sold time, occur another trial. taking ground at the into considera expense of digging balling the tion shrubs. urges next that it was error to light testimony, ex In Giles, permit Bascom Land Commis- which such shrubs for cept market sioner, testify during that one afternoon *8 months, the winter was not available until trial, day’s ended, proceedings the after the given proper. were the instructions Since City Manager Mayor and the the him called pecan grown were not and trees the fruit by telephone protested against and his production nuts; and of fruit and McMahon, for the allowing engi- one reclamation solely grown shrubs were all the for the as was Giles, of neer, employee testify to on be- sale, nursery stock purpose of Howard, against City. and the half of partook at time more of marketable they ground regarded on it This goods, than of a stock of of an nature improper employee testify as for State to crop. a growing See orchard or 13 Tex. City; showing and as not against 45; 43, 65, 39, p. p. 53; p. 152. City § § co-operative spirit § between the and the Jur. concerning The information this State. jury by Argument to the one of appears to have been communicated call appellee complained is also the counsel by morning the next be- Giles McMahon that he judge counsel stated was of wherein called to his witness was conclude fore the house, trial in that court first in the testimony. Mary Dugan, wherein one of the trial may be conceded that City’s principal was a It witnesses witness in case; practiced testimony adversely to react that he was calculated that testimony had on his clearly, think, City. But we days; against that famous trial for prepara- It it. settled that “he reminded me was not error to is well admit by party sup- opinion, any attempt to a his suit the levee caused the waters press testimony improper, may be to flow across Howard’s land. We doubt party. shown adverse v. whether expres- this even constituted an Johnson n 41; Whitehand, Tex.Civ.App., opinion. sion of 21 S.W.2d physical object Where a 231, Tex.Jur., p. Am.Jur., 556; flow of a stream § and the action § 115, 281, C.J., .the p. p. Annota- water as passes it reaches and it are § n tion, seq. clearly visible, et 38 A.L.R. object .595 action of the Inferential^ n diverting purpose telephone such in calls was flow the water is a common . question. may be observation a as stated a fact ' non-expert requires witness. It no ex- appellant that these on But insists acts pert skill to determine such fact. Nor did part clearly officialsnamed of the were question province invade the of the beyond authority binding on their not n jury. The conclusively showed City, citing particularly City the case of that the flood waters did flow across How- Forbis, of Austin v. S.W. land; they ard’s and that when reached import. atad other of like In that cases point they divided, of the levee part were case, however, the statements involved re- on one flow side directly obstruc- lated to the merits of the suit and tion, and a on the other. liability city The real is- of the to the sought. sented; -controversy sues in pre- ultimate facts different here A situation is to be determined were whether the involving liability, one not of facts channel was testimony, obstructed and the suppression waters so but of diverted involved, obstruction character caused to flow of which is offered appellee’s over land in a hy quantity, plaintiff. different manner, velocity they than would have think, is, City we immaterial It that the flowed,had the obstruction not been built. Mayor Manager did not have the authority compromise to settle or Howard’s City urges jury’s also that the approval without the consent (cid:127)claim finding guilty that it was negligence City'Council; and that it was the func- the location and manner in which the levee City Attorney tion of the to conduct the wholly was built was support without evidence to representatives trial. These officials'were liability City it. The n City general powers, with broad damages, any, to Howard’s land was not telephone presence calls occurred in the dependent upon City’s negligence vel n ofa member of the' City’slegal staff. Man- was, think, non. Hence this issue we im ifestly actively they were interested and liability based, material. Such stated participating on behalf of the in the above, upon I, Sec. Art. of the State right conduct the trial ás had a City Brady Cox, Constitution. supra; v. n do, deemed, and their conduct should be un- Hale, supra; State of Waco v. circumstances, der such to be within the Rook, supra. scope general ' authority. of their Nor it error to was refuse to sub urges also as error the admis- jury requested mit to issue as to testimony Platt, sion of the witness appellee’s damage was due whether to an n ground expert, he was not an question The same “Act of God.” effectually that the effect levee around the dis- inquiry submitted in the whether posal plant caused the flood waters flow unprecedented. flood was See Tex. lands; Howard’s across further that p. and cases there cited. § ultimate, Jur. this was issue to be determined jury. by the It is immaterial that the think acting governmental We there was in a capacity, no error *9 in and general testimony preserve this. rules that the erected said protect and n lay witnesses should public be confined the clear, health of its to facts inhabitants. It is n ofwhich they' personal think, knowledge, we without prolonging this leaving opinion inferences or conclusions pre therefrom differentiate case here jury, sented, court to the or are well city that the rule established. that is not lia Tex.Jur., p. 14, p. property for for destroyed 33. In ble § in § witness, quarantine the instant case the who had regulations, ob the enforcement area, prevent spread several floods in served including pestilence or of in 1938,and, diseases, it, as we applicable that of understand had fectious is not to the the. they observed flow the waters as questions instant case. No such are here n struck point levee, testified.that, involved. Procedure, undertaken to discuss cause should we have not Rules of Civil While presented by only on the issue of be for trial propositions we have said reversed all of disposes damages. of the That is tó determine whether City, what Montopolis presented. bridge highway And in view em- questions and the various dispo- reached, portion appellee’s bankment caused a conclusions of the appeal, damage damage; it becomes un- of the made amount sition appellee’s City. necessary cross pass acts undisputed evidence assignments that Rule' 434 is but a re-enactment law, showed, Howard as matter of that 62a; consequently of old Rule carries dam- full amount of'the was entitled to the interpretation application with it the This, nursery stock for. ages to sued discussing rule the courts. Without testimony of of the nur- all based on matter in here it seems clear that view number, serymen, in several opinion pointed of the errors in our out we destroyed was the shrubs market value of only would not authorized to reverse be by How- amount in excess of the claimed part appealed the judgment from. The manifest, however, that such It ard. cross judgment manifestly in the not severable' sustained; assignments cannot be respects Tex.Jur., p. urged. 1150.' § that these jury did not believe all that the things motion is amended over- all They con- could also have witnesses said. ruled. evidence, as was their from the cluded Overruled. nursery stock was not province, that the totally destroyed. stated, judgment of For the reasons trial court re- is reversed cause manded for another trial.
. Reversed and remanded. Appellee’s
On Amended Motion n Rehearing. rehearing, ap- DUVALL et ux. al. In his amended CLARK et motion insists, pellee among things, other that it No. 2295. not error for the to refuse trial court opin- set Appeals to submit the issues forth our Court of Civil Texas. Waco. herein, issue ion reason that “C” Oct. (cid:127) inquired only whether construction of highway bridge Rehearing “contributed” to On Dec. whereas, appellee’s damages; Rehearing 5, 1942. Denied Feb. escape only liability by showing (cid:127)could bridge in- construction road dependently damage or a caused' Manifestly thereof. the acts of two where tort-feasors, independent acting wholly other, greater each to cause a combine (cid:127)damage than would have resulted had acted, them one of acts of each must necessarily degree contribute some injury separate resulting total The test as laid down in both. acts both Bradshaw Robicheaux cases n opinion is whether the (cid:127)cited tort- independently, feasors and if acted so portion whether damage the whole to, by, attributable or the inde- contributed (cid:127)pendent reasonably each acts of can can, separately be If ascertained. *10 injuries then each liable for the (cid:127)caused acts. his own urged It also adhere to our that we herein, opinion (cid:127)original Rule under