268 S.W. 773 | Tex. App. | 1925
The substantial question in the appeal is whether the appellants are liable for damages to the land of appellee by reason of the construction of the levee. The levee was constructed by the appellants in an effort at the reclamation of their land for agricultural purposes, and its protection from the overflow of South Sulphur creek. A riparian owner may lawfully erect a levee on his own land for the purpose of controlling overflows and freshets in creeks and streams along the land. Article 5011t, Vernon's Ann.Civ.St. Supp. 1918; Simon v. Nance (Tex.Civ.App.)
The evidence was conflicting as to whether or not the erection of the levee in this case had the effect of casting increased volumes of waters upon appellee's land and injuring it. The appellants' land, situated on the west side of the creek, is low-bottom land. The ground on the east side of the creek is higher than the ground on the west side. The greater volume of the waters of the creek in times of flood and heavy rains leaves the main current and spreads out over the lower ground on the west side at appellant's land, due to the lower bank of the creek and the inclination of the ground. In these circumstances the levee, in accomplishing the result of preventing the overflow of the creek on the appellants' land, necessarily had the effect to confine the flood waters within the area of space between the levee bank and the east bank of the creek, and to force such waters on down such areaway. This areaway so created either was or was not of sufficient capacity to hold and to carry off the flood waters of ordinary and usual floods or heavy rains, without casting increased volume upon the land of the appellee, situated as it was on higher ground. The levee was located some distance from the west bank of the creek, and at no point was it closer to the bank than 50 yards. The banks of the creek were not changed or altered. There was, too, the excavation, or "barrow pit," about 40 feet wide and from 6 to 10 feet deep, capable of carrying off a large volume of water.
The witnesses in behalf of the appellants say that the flood waters were carried off, and that the appellee's land was not overflowed to any greater extent or volume than before the levee was constructed. On the other hand, the appellee's evidence goes to show that the areaway was not of sufficient capacity to carry off the usual flood waters of that creek, and that since the construction of the levee the volume of the flood waters *776 cast on a part of his land next to the creek, to the extent of about 125 acres, has been greatly increased, and the value of the land materially depreciated thereby. In view of the evidence, this court would not be authorized to say, as a matter of law, that the jury was not warranted in finding that the effect of the levee was, in times of ordinary overflows of the creek, to unnaturally cast upon appellee's land flood waters in greater volume than before its erection, causing permanent injury to the 123-acre tract as a whole.
The conclusion has been reached that the judgment should be affirmed, and it is accordingly so ordered.
We have considered all the points, which are quite clearly presented by the appellants, and think that reversible error may not be predicated thereon.
