This is аn appeal from an order refusing to grant a temporary mandatory injunction.
Appellee is a levee improvement district organized under the provisions of chapter 44, General Laws of the Thirty-Fifth Legislature, for the purpose of reclaiming land lying in Trinity river bottom.
The district as laid out and incorporated *608 includes a portion of appellant’s land. However, after the district was created and construction had begun, a controversy between appellant and appellee arose with reference to taking a portion of appellant’s land and building a leveе upon it. The dispute caused appellee to deviate from its purpose to build the levee on appellant’s land, or, at least, after appellant began to make contentions against the original plan of construction of the levee upon and with reference to its land, appellee changed the plan and altered the course and position of the levee so as not to touch any part of appellant’s land and left it entirely outside the territory to be circumscribed by the levee walls. With apрellant’s land thus excluded, appellee began its work of building the levee on January 11, 1921. Appellant filed its application for a restraining injunction praying that a temporary injunction issue pending a final hearing. An order was entered by the trial judge when the application for a temporary injunction was filed, designating January 22, 1921, as a date for hearing it, after notice to appellee. Whatever reason (and none is disclosed by the record) for it that may have existed, no action was taken on the application on the date so set for a hearing and the application pended as originally filed until August 1, 1921. On that date a pleading designated as a supplemental petition and motion for a mandatory injunction was filed.
This last pleading, as well as the answer also filed on August 1, 1921, revealed that in the space of time which had intervened since the original petition was filed the levee wall had been completed in the place and course projected and designated after the abandonment of the location against which appellant had originally prоtested.
The ’ substance of the complaint embodied in the first application for injunction may be succinctly stated as follows: Appellant is a corporation authorized by law to maintain a hunting and fishing club on 836 acres of land on which are located lakes, this land lying along and being bounded by the Trinity river, and which, including the improvements and equipment, is of greater value than $60,000; that such premises are devoted to the uses of hunting and fishing by its members, as well as being used by them for health and recreation; that the buildings are located on land which is above the ordinary overflow of Trinity river; that ap-pellee was proposing to erect a part of its levee along a line on a side of the land, so .that the land would be between the levee and the river; and that the levee, if constructed, would divert the water which flowed out over appellant’s land in ordinary overflows and cause the water from the river to flow with great violence upon appellant’s land and improvements thereon, almost totally destroying the buildings and equipment ,and rendering the premises unsafe for appellant’s purposes and also unsafe as a place to reside.
It was alleged that the law under which appellee was organized is void, and that particularly it is invalid so far as it gave appellee authority to build and maintain a levee or cast the waters from the river upon the overflowed land of appellant without the latter’s consent and without first making adequate compensation as provided by the terms of the state and federal Constitutions prescribing, the manner of exercising the right of eminent domain. It was further alleged that, if the legislative act upon which appellee’s organization and existence were founded were at all valid, then it validly authorized levee districts to be formed only by building levees on, along, and contiguous to streams, and that appellee had not located its levee district along and contiguous to the river, but, on the contrary, had located it away from the river .so that appellant’s land was left between the river and the levee district without protection and without the benefits contemplated by the legislative enactment, while it would suffer the disadvantage of land thrown between the levee district and the river; that, if the act were, valid in any wise, it provides and contemplates only that levee districts shall extend to the channel of a river whose waters are levied against and shall be built along and contiguous thereto, and hence, the levee district under construction not being so located and designed, no lawful authority permitted further procedure.
The petition is voluminous and sets forth other allegations, which we do not consider it necessary -to state or discuss with particularity.
The supplemental petition and motion for mandatory injunction filed on August 1, 1921, as above stated, alleged that the levee had been “built and completed alongside of plaintiff’s property and for some distance below and above the same, so that the property of plaintiff is now subject to overflow by the impounding of waters upon its land which formerly spread themselves over ad-' jacent land now segregated from plaintiff’s land hy such levee.”
There was a prayer that a temporary mandatory injunction issue requiring that appel-lee make openings in the lеvee to permit the the waters, which would otherwise be impounded on appellant’s land, to spread over the adjacent land, as they formerly did in times of overflow before the levee was built.
The record as a whole supports the conclusion that the land belonging to appellant is entirely excluded from the area comprehended within the limits of the levee actually constructed, and that no part of the levee rests upon any of appellant’s land.' The *609 levee, it appears, was designed and constructed to рrotect the land around which it is built by excluding from it the waters which overflow from the river channel in rainy seasons and spread over it as they spread at such times over appellant’s land. The levee district and appellant’s land lie on the same side of the river, appellant’s land intervening between the river and the land within the levee, and all the land affected lies in the Trinity river bottom and is what is generally known as “bottom land” which expression in this part of the country is generally understood to mean more or less level land attiguous to streams and stretching аway to the uplands and over which the water from streams spread when the rains come and increase the volume of water drained into the channel beyond its capacity to carry it.
The law was passed in pursuance, not only of a right, but of direction, embedded in .section 59 of article 16 of the Constitution of Texas, which was adopted as an amendment in 1917, and which is as follows:
“The conservation and development of all the natural resources of this state, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams, for irrigation, power and all other useful purposes, the reclamation and irrigation of its arid, semiarid and other lands needing irrigation, the reclamation and drainage of its overflowed lands, and other lands needing drainage, the conservation and development of its forest, water and hydroelectric power, the navigation of its inland and coastal waters, and the preservation and conservation of all such natural resources of th§ state are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.
“There may he creаted within the state of Texas, or the state may be divided into, such number of conservation and reclamation districts as may be determined to be essential to the accomplishment of the purposes of this amendment to the Constitution, which districts shall be governmental agencies and bodies politic and corporate with such powers of government and with the authority to exercise such rights, privileges and functions concerning the subject matter of this amendment as may be conferred by law.”
The law provides for the condemnation of land when taken by levee districts through the condemnation proceedings prescflibed by article 6505 et seq., Kevised Civ. Statutes, relating to condemnation by railroads. Section 9 of chapter 44, Acts 35th Leg. 4th Called Sess.
We are unable to bring ourselves into agreement with either of these positions. Section 17 of article 1, State Constitution, secures every person against the exercise of the governmental right and power of eminent domain without adequate compensation, and article 5 of the United States Constitution also provides that private property shall not be taken for public use without just compensation. Under both instruments the exercise of the power of eminent domain is regulated. But, so far as the question presented enters this case under the record, the provisions of the state Constitution alone concern us, because there is no specific inhibition in the United States Constitution against taking private property in any event until after compensation is paid; whereas, on the other hand, the state Constitution provides that—
“No person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, * * * and when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money.”
It is to be observed that the express requirement inheres in this provision for compensation to be first made when property is actually taken for a public use and that this requirement does not obtain when the property is damaged or destroyed for a public use. The question here to be determined then is; Do the facts of the case reflect an actual taking of appellant’s property or infliction of a damage upon it consequentially flowing from acts committed upon adjacent property? In other words, granting that the building of the levee as described to prevent the water from the river flowing upon the lands within the confines of the levee discrict will increase the depth of the water on appellant’s land and cause it to flow with greater violence across it and stand for a longer period of time than formerly upon it, do these facts constitute a taking of the prop *610 erty or merely a damaging of it within the meaning of the Constitution?
Appellant relies upon the ease of Port Worth Improvement District v. City of Port Worth,
The city of Fort Worth is a municipal corporation and for many years prior to the creation of the improvement district was a riparian owner of certain lands along the Trinity river, and had maintained two pump stations on its riparian lands for 25 years before the construction of the levee was begun. The levee district undertook to build а levee along the bank of the river on the side of the river opposite that on which the pump stations were located. It appeared that prior to the construction of the levee the ordinary overflow of water from the river, or even the highest flood waters, did not flow into the pump stations maintained by the city, because the waters spread out over the valley of the river in a continuous stream in cases of overflow and found its way back into the main channel further down the stream, but that after the construction of the leveе its effect would be to throw all the overflow water from the channel of the river upon the side thereof opposite from that on which the levee was being constructed, and thereby submerge and destroy the pump stations.
A case was made by the facts where one riparian owner by heightening the bank of the river on his side of it for his own protection was throwing the entire volume of the overflow water over upon and injuring the property of the opposite riparian owner, and it might be said that it was as if the improvement district was destroying the opposite bank by erecting an embankment to reclaim its land and thereby changing the natural flow of the water and casting it upon the city’s property.
In the instant case nothing is done to change the course of the water as it leaves the river. The land of the improvement district in this case is not riparian in the strict sense of the word, and its construction of the levees where they are located is not the act of a riparian owner. As above stated, appellants land lies between the river and a-ppellee’s land, and, as we understand thе description of the situation which is made to exist by building embankments, it is that the same water which has always crossed appellant’s land after leaving the river is merely shut out from going upon the levee district’s land after traversing appellant’s land. Furthermore, as before stated, wé gather from the record that the lands belong' ing both to appellant and to appellee are such as are generally designated as “bottom lands” upon which the waters uniformly come when excessive rains fall or the river overflows from any cause, go that, while much is said аbout the rights of riparian owners in the arguments presented to us we do not think that any right strictly appertaining to such owners under the law governing the
*611
uses of riparian lands can be said to apply. Steamboat Co. v. Steamboat Co.,
Moreover, while the respective positions of the improvement district and the city of Port Worth in the case cited by appellant were exactly those of riparian owners, yet no question of the taking of property as con-tradistinguished from damaging property was involved in that case. The court treated the facts presented altogother from the viewpoint of the right of compensation for damage on the part of the city, and did not undertake to treat the distinction between the right to an injunction to prevent the taking of property for public use before it is appropriated and the right to peculiar damage inflicted upon it as a result of constructing a piece of work to be used as, or in connection with, a public enterprise.
“In all matters not herein provided for levee improvement districts created hereunder shall be governed by the provisions of chapter 146 of the General Laws of the regular session of the 34th Legislature.”
Section 57 of the latter act (Vernon’s Ann. Civ. St. Supp. 1918, art. 5581) authorizes a functionary designated as district supervisor—
“to keep the space between any levees or other improvements, and the stream or streams the overflow of which is intended to be prevented, free and clear from all obstructions.”
Appellant insists that, the law under which appellee is created and is operating having thus by reference incorporated the above-quoted provision from chapter 146 of the General Laws of the Thirty-Fourth Legislature, the right is thereby given appellee to go upon appellant’s land at any time and clear away any obstructions which may be on it tending to prevent the flow of water over it. This, says appellant, is clothing appellee with the absolute right of entry and control over appellant’s land so as to constitute an actual appropriation of it, which cannot be made until compensation has beеn provided or paid in compliance with the requirements of section 17, art. 1, of the Constitution, relating to the taking of private property for public use. Both chapter 44 of the Laws Enacted by the Fourth Called Session of the Thirty-Fifth Legislature and the above-mentioned chapter 146 of the Acts of the Thirty-Fourth Legislature (Vernon’s Ann. Civ. St. Supp. 1918, art. 5530 et seq.) are long and cumbersome and contain numerous provisions, which circumstance renders it tedious to say precisely what is authorized and what is not authorized by the one and the other. However, we think it manifest that thе purpose of chapter 44 was to create conservation and’reclamation districts to reclaim river bottom lands from overflow waters which come upon them, by building levees to stop the water at the edge or boundary of the levee districts, whether the levee district may comprehend lands removed a distance from the channel of the stream itself or which may abut upon the channel. On the other hand, we think it equally clear that the purpose of chapter 146, above referred to, was to make provision for the cоnstruction and maintenance of levees and other improvements along rivers and other streams by building the embankments along and contiguous to the channels themselves, to prevent the stream from overflowing. The law in the one instance provides for the protection of lands against the waters from rivers and streams after they have already overflowed from them, and the other provides for confining the waters within the channels so as to prevent overflow. Accordingly we think section 57 of said chapter 146 has no application whatevеr to the character of levee improvement constructed by the appellee under authority of *612 chapter 44. The purpose of chapter 146,' Laws of the Thirty-Fourth Legislature, being to authorize improvements to confine the water within the stream! of the channel, section 57 was inserted to provide authority for beeping the entire space between the embankments open so that obstructions might not choke the stream and cause the water thereby to reach such’ a high level as to break over its confines and thus defeat the purposes of the embankments authorized by the act. If this view is correct, as we think it is, then it is manifest that the section of chapter 146 above quoted could have no application to a levee district designed to divert water from premises far removed from the stream itself after it had already overflowed and extended to the levee constructed.
The levee has already been constructed at a cost, according to the unchallenged statement of appellee’s counsel, of mоre than $400,000. To require the destruction of the levee, in the nature of things, would be to undo all the work done at this great cost and to destroy all the advantages arising from the reclamation .wrought by it. To grant the temporary mandatory injunction would be practically to compel the restoration of the previously existing conditions to remove which the levee was built and the funds of the levee district1 expended. Whatever the reason may have been for it, appellant failed to invoke the action of the court until after the levee had bеen completed, and permitted the original application for injunction to pass without action for a period of almost seven months, during which appellee, in apparent good faith and without any unconscionable design, proceeded with the work to completion. The parties being in the respective attitudes thus1 brought .about, we believe that the doctrine of the “balancing of injuries,” sometimes mentioned by the authorities, ought to be applied. It seems to us evident that to comply with appellant’s solicitations would be to inflict upon appellee a much greater injury than would result to appellant by denying them. For this reason we believe the trial court, in the exercise of its sound discretion can be justified in refusing to grant a temporary mandatory injunction. Oliver v. Forney Cotton Oil & Ginning Co.,
In the situation presented we think it was equity to deny the temporary mandatory injunction, and, under the circumstances, whatever damage or .injury may be suffered by appellant, if established, must be compensated by recovery in a suit at law.
The judgment is affirmed.
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