*1 i-Taylor Corp., 162 344 S. Oil (1961).
W.2d 411
I the Railroad would hold (1) given authority by Leg-
Commission question
islature to determine the A
existence unlawful discrimination. try issue because
court cannot out this discretion
involves exercise of interest as the best
Commission public involved utilities and of the it can render
and the character of service public. (2) That Commission existed
did that discrimination determine had its has this case. Crown Central perfecting
day question by court order of appeal finding and
an from this never Central has Crown Commission. compe- judgment of a court of
obtained a aside, modifying, setting jurisdiction
tent reversing Therefore, such order. be
valid, now existing order and proceeding.
collaterally in this attacked their have a trial of
(3) Plaintiffs must be seeking damages and action case present such
given opportunity to able to establish. they may incor- summary
granting
rect, tried should be this case
district court. Petitioner, Texas, HOUSTON, CITY OF al., Respondents. INC.,
RENAULT, B-408.
No.
Supreme Texas.
July 17, 1968.
Rehearing Oct. Denied
The
for
was leased as a site
storing
Originally
automobiles.
natural
water
flow of surface
from
east,
primarily
ap-
tract was
to the
pears from
the evidence
water would
have broken over to the south and west
building up
depth
after
to a
one
of about
foot on
part
Im-
south
of the land.
mediately south of the 27-acre tract
Drive,
roadway
Clinton
which is a divided
County.
constructed
south
by Harris
The
lane
north
was built
about 1927and the
lane in
road
1947. Since
surface of the
was several feet above the level of
premises,
roadway would,
leased
if ade-
quate
provided,
drainage
serve
impound
that might
otherwise
tract toward the south and west.
Olson, City Atty.,
William A.
Homer T. A box
six feet
and
feet
culvert
wide
four
Bouldin,
Supervisor,
Trial
Carrol R. Gra-
high
under
em-
placed
was
road.
ham
Beazley,
and
M.
Herbert
Asst.
bankments
and tracks of
Southern
Attys., Houston,
petitioner.
Pacific Railroad and the Port Terminal
par-
immediately
Railroad are
of and
south
Thompson, Coe,
Irons,
Cousins
R. B.
allel
Clinton Drive. Each of the rail-
Cousins, Dallas,
Painter,
Painter &
James
roads had
two 48-inch round culverts
Houston,
Roos,
R.
Speyer,
Greenhill &
approxi-
under
their embankments and
Greenhill;
City,
Simon
re-
New York
mately in
under Clin-
line with
culvert
spondents.
ton Drive.
Subdivision,
WALKER,
Clinton Park
is lo-
Justice.
Crispin property,
cated east of
de-
was
Renault,
Inc.,
Inc.,
Distributors,
Renault
veloped in
At
that time the elevation
Hughes-Peters, Inc.,
as successor
of the land included in the subdivision was
Sterling
brought
suit
Motors, Inc.,
feet,
raised
blocking
from three
six
thus
Houston,
Pa-
against the City of
Southern
direction.
result
As a
cific Railroad and Port Terminal Railroad
elevation,
changes
moreover,
1,620
Renault
recover
caused to
water from the western portion
sub-
Peugeot
trucks
division flowed
the west rather than to
on the land
of surface waters
in,
After the
put
east.
subdivision was
The trial
where
vehicles were stored.
draining
area
total
toward
culvert
jury
on the
judgment
court rendered
ver-
Drive
approximately
Clinton
was
nothing. Plain-
plaintiffs take
dict that the
422 acres. This drainage area included
appealed
tiffs
premises,
the leased
other land
north
Ap-
city.
favor of
west,
part
of Clinton Park Sub-
trial
peals reversed the
court’s
division to the east. The entire
was
area
judgment against
rendered
annexed
in 1949.
$862,500.00.
an
elevation
of such size
It has
on several
out
area,
refused
adequate drainage of
of the Constitu
that this section
occasions
negligence;
give
against
the same was
action
to find
tion
not
cause of
does
debris,
there was
find that
for acts
(13)
constructing public
refused to
works
those
culvert;
(19-20)
pursuit
vegetation
which,
by
in the
silt and
if done
individual
maintained
private enterprise,
Drive as
not be action
found that Clinton
of a
would
Ry.
Trinity
natural
city impounded
able at common law. See
& S.
question,
premises
Meadows,
surface
11
3
waters
Co. v.
Tex.
S.W.
73
565;
impounding was
Service
and that such
Public
L.R.A.
Southwestern
damages;
(23-24)
plaintiffs’
Moore,
29
Co. v.
S.W.2d
proximately
damages
Hall, Tex.
Gainesville,
were
R.
78
found that
H. W. Co. v.
plain-
negligent
This test
14
property the is production crops of but Institute, liability the of causes an one who general duty under the to receive surface of unintentional but substantial invasion flowing and water thereon when untouched by the the interfering land of another with by the Opposed undirected hand of man. depends upon wheth of surface water doctrine, enemy this is the so-called common er reckless or negligent, his conduct was recognizes right which of a landowner in is ultrahazardous. Where the invasion prop- to turn surface from his water own liability depends upon whether tentional, erty may liability damage without An in was unreasonable. invasion by be caused such obstruction or diversion. meaning vasion is intentional within the of seq. See 56 The Waters 67§ Am.Jur. acts for these rules when defendant enemy adopted in common doctrine was purpose causing it knows of jurisdictions Texas a and number other of re resulting substantially certain to or is in the mistaken belief that it the rule Restatement, sult his conduct. See English of' the law. Miller v. common Torts, In thereunder. 833 and comments Letzerich, and better rule our' this is sound Matagorda Barnett Rice A.L.R. in the governing of a statute absence Co., Irrigation 98 Tex. 83 S.W. rights obligations parties, of the City Lampasas, Gross v. of respect property where least with urban constantly changing conditions are Miller, pointed As out in our Courts of impossible to generally difficult or even Appeals enemy applied common “when flowed establish how surface water predecessor doctrine until the of Article by the hand untouched and undirected adopted 7589a was in 1915. example, This statute case, present man.” In the was omitted from codification of speculation it is matter of largely a reenacted time but was in 1927. Since that any, plaintiffs’ extent, what most controversies over the natural damaged if would have been governed by surface water have had east not been obstructed statute, we similar have not some Park Subdivision. Clinton rule in the reexamined our common law here A was unintentional. invasion developments jurisdictions. light in other road to had been under the modifying qualifying the traditional By rules, draining the courts in a number of water substantial accommodate flexible was at have “tended toward more north. The bottom of this culvert states ridge position” gives them “consid- the low about elevation as the same middle leeway rights point the road before adjusting which existed at erable light particular appear circum- It does was constructed. parties city, They generally any way that surface hold culvert was altered stances.” by re- only off if done fended reason- which maintained road pairing improving finding for travel of that city maintaining public. negligent was not as it Rule Rules of road did. Texas ponded frequently 1959water present record Civil Procedure. On the Crispin portion prop- on the southern statute, private then and in absence erty large after a rain fell in amount of guilty and omissions individual acts period time, short there is no evi- case would not be liable knew this was caused dence failed, at common Plaintiffs have law. condition which the road was main- therefore, right their to establish to recover owner, Crispin, tained. Mr. testified theory that the automobiles flooding that he had heard of meaning damaged for within the use representa- one time. In 1959 his of the Constitution. requested tive an ad- to construct ditional culvert Clinton Drive. under ex- recognize We views here request to the Director was referred pressed opinions are not consistent with the Works, reported Mayor Public Roberts, who City 121Tex. v.Waco that two investigation that an had disclosed Ft. Mil- Worth v. recently ler, metal (wr.ref. culverts installed Tex.Civ.App., 336 *5 Railroad Port Terminal embankment n.r.e.). They disapproved, are to agreed to high; that the railroad had too hold- they the extent that conflict with our that such grade; to correct ing present lower It be ob- case. should pipes on and the other structures trial new cases the served that each of those ade- city, Drive were north road ditch of Clinton against court rendered warranted, quate discharge the runoff and if the record otherwise area; Crispin proper- drainage finding and that the of have deemed there would been a always been ty extremely judgment. and had was low negligence of flooding. communications subject City These Ft. of v. We also note that Worth negligence, but are on the of Miller, relevant issue the construction jury found plaintiffs knowledge on proximate have not shown work done was part of the flooding of the leased of the water. cause of diversion substantially or resulting was “to was be an instruction that charge included of certain maintenance to result event it must have proximate of an cause existing the road with culvert. by person of reasonably anticipated been ordi- of ordinary prudence, in the exercise found that Clinton jury care, similar nary injury or some city impounded the as maintained v. City of Waco injury would occur.” prem of waters on natural flow surface may well Roberts, moreover, the invasion question, ises such that term defined intentional have been proximate plaintiffs’ dam cause was above. ages. was It to find that refused rely upon of other a number Plaintiffs maintaining the negligent in cases, on the distinguished are be prevent such size elevation Hale, 136 following v. grounds: (1) State there adequate drainage the area 731; Im 29, Ft. Worth the cul Tex. 146 debris, vegetation in S.W.2d silt and was Worth, City 1 provement Dist. No. v. Ft. negli dealing with other issue vert. No L.R.A.,N.S., 164, submitted, 106 Tex. 48 158 S.W. part city was gence 994; Tex.Civ.App., 343 Loessin, v. State such an issue request for and there was no ; Sparks, v. (wr.ref.n.r.e.) State S.W.2d 494 same. submit objection writ); 609 Tex.Civ.App., (no 296 S.W.2d matter as a Negligence is not established Wall, Tex.Civ.App., 207 City of Houston v. and since In these circumstances law. ; County Tarrant (wr.ref.n.r.e.) the S.W.2d 664 rendered trial court Fowler, 1 v. I. Dist. No. in W. Control & deem nothing, we must plaintiffs take
327 plaintiffs Tex.Civ.App., (wr.ref.w.m., (respondents) 694 to ascertain 175 S.W.2d v. 250); prop- Tex. 179 S.W.2d State characteristics 142 (wr. erty question Malone, Tex.Civ.App., negligence? 292 168 S.W.2d Howard, ; City Tex. ref.w.m.) of Austin v. “Answer ‘We do.’ (wr.ref.w.m.); 158 Civ.App., S.W.2d 556 Cox, Tex.Civ.App., Brady City of v. you prepon- “24. Do find from a writ), apparently were (no derance of neg- the evidence that such recovery damage caused for the ligence, any, if actions was a impounding of flood by the diversion or the damages, any, sustained waters; (2) in plaintiffs rather than surface ? Mauldin, Com.App., 39 v. Falls
Wichita “Answer ‘We do.’” damage was found to have proximately negligence respondents’ neglect contributed to County city; Harris v. Ger loss sustained them. An individual hart, v. 283 S.W. Clark defendant, having power of eminent Dyer, Angelina S.W. domain, would not I think do not liable. County Bond, Tex.Civ.App., v. Article Texas Constitution County (no ; writ) and Palo Pinto personal prop- affects the situation. When Gaines, Tex.Civ.App., (wr. erty negligently placed upon land sub- based, part, Article ref.), upon are either ject flooding, owner con 6328 or Article which have been against should not be allowed to recover upon rail imposing strued as counties a defendant because of the circumstance duty provide adequate drain roads the power the defendant is vested with no age roads and There is tracks. of eminent domain. *6 applicable municipalities, similar statute did opinion and it is that the trial court our rendering judgment on the ver
not err city.
dict in favor of Ap- of the Court of Civil
peals accordingly reversed and that of
the trial court is affirmed. SONS, INC., A. Petitioner, J. ROBINSON
NORVELL, (concurring). Justice al., Respondents. Helen O. WIGART I concur of Mr. Justice No. B-597. Walker, my opinion but in there are other grounds which Supreme Court of Texas. I shall mention reversal. one. July 17, 1968. an unusual case This is on the facts. The Rehearing Denied Oct. highway respond-
construction say ultimately action which ents place took
resulted some time City’s 1949 annexation
prior
territory eleven involved. some annexation, respondents after
years personal property movable Special 23 and Issues Nos.
area. thereto, jury’s were as follows: answers preponder- from a you
“23. Do find evidence
ance