219 S.W.2d 115 | Tex. App. | 1949
This is an appeal from an order (non-jury) denying plaintiff’s application for writ of injunction. There is no statement of facts. The facts are without dispute and we will state those pertinent to this discussion.
The plaintiff, Red Lake Fishing & Hunting Club, a corporation, owned a 400 acre tract of land in Freestone county, on which an earthen dam had been constructed across a natural water course which impounded
At the request of the plaintiff the court filed findings of fact and conclusions of law, the pertinent parts of which we quote:
“13. That at the time of the trial (on the merits) of this case, the waters impounded by the construction of the Burle-son Dam extended north of the north line of the defendant’s tract of land and onto approximately three-fourths of an acre of plaintiff’s land.
“14. At the boundary line between plaintiff’s tract of land and defendant’s tract of land, where such line crosses Jolly Cole Slough, the water was and is 184 feet in width. The depth of the water in Jolly Cole Slough Channel, at such boundary line, is 4½ feet; and the channel of such Slough at such point is one foot in depth, the water on the banks of such Slough, at such boundary line, being 3½ feet deep; and such water narrowing in depth to the water’s edge of that portion of the water covering plaintiff’s land.
“15. That tire water impounded by the construction of Burleson Lake Dam at the time of the trial of this cause, lacked about 15 feet of reaching the base of Red Lake Dam; and that if the water of Burleson Lake was caused to rise 1J4 feet higher than the present level of such water in such lake, then the water of such Burleson Lake would reach the base of Red Lake Dam.
“16. That with the waters of Burleson Lake being on a level with the lowest spillway of said Burleson Dam, there is no way for the waters in Burleson Lake to recede off the land of plaintiff, except as such waters of Burleson Lake is lowered by evaporation, and except as the waters of such Lake are lowered by the water escaping through the 8- inch pipe extending from such Lake through such Burleson Dam at its base.
“17. That the area of some % acre of plaintiff’s land covered by reason of the waters being caused to back up from the Burleson Dam, is the usual land found along spring branches and marshy creeks— that is, the same as liberally sprinkled with small trees, saplings, vines, underbrush, etc.
“18. That there was no evidence introduced upon the trial of this cause as to the amount of plaintiff’s injury or damages suffered by reason of the complained of acts of the defendant, except that it was shown as to the extent of the land of plaintiff (% of an acre) covered by the waters backing up from the Burleson Dam, as above found and stated.
“19. That the evidence in this case is wholly insufficient to show any injury to the Red Lake Dam, or any threatened injury to such dam by reason of the acts of the defendant above found.
“20. That whatever injury the plaintiff has suffered by reason of the waters being caused to back up and cover %th of , an acre of plaintiff’s said tract of land, can be measured in money, and is not irreparable.
“21. That although plaintiff’s allegation in its petition, are those seeking prohibitory injunctive, relief, yet such petition, as well as the evidence, showing that at the time of the filing of plaintiff’s suit the Burleson Dam had then been completed, there is no injunctive relief that the court .could grant the plaintiff, except in the nature of a mandatory injunction.
The court concluded as a matter of law:
“1. The extraordinary remedy of permanent mandatory injunction compelling the alteration or lowering of defendant’s dam, or a part thereof, should not be granted in this case, it not being shown that serious injury is being inflicted, or in all probability will be inflicted by the complained of acts of defendants.
“2. It not being shown that plaintiff will suffer irreparable damage and injury by reason of the withholding of injunctive relief in this case, the petition for injunctive relief was denied.
“3. The right to injunctive relief in this water controversy is limited by the general rule applicable to the writ and no threatened injury of an irreparable character being shown by the evidence submitted, the injunctive relief sought by plaintiff was denied.
“4. It being shown that water was by the defendants caused to back upon ¾ of an acre of plaintiff’s land by reason of construction and building of the Burleson Dam, and the plaintiff having failed to offer evidence as to the amount of damages, the court assessed nominal damages of ten dollars against the defendants and costs of suit.”
The decree awarded to plaintiff nominal damages , in the sum of $10, together with costs of suit, and denied all other relief. The decree further provided that it was entered without prejudice to the rights . of the plaintiff should conditions so change as to show irreparable loss to plaintiff.
Appellant assails the judgment denying the injunction substantially on the ground that inasmuch as it is undisputed and the court found that appellees, in the construction and maintenance of their dam, had permanently flooded three-fourths of an acre of land belonging to appellant, and that the water covered said tract to a depth of three and one-half feet, that such flooding amounted to an appropriation and a trespass and that such appropriation and trespass, as a matter of law, constituted irreparable damage; and since it was a continuing trespass, the injury was permanent and the writ of injunction should have been granted.' We think this proposition must be sustained.
, Our Supreme Court, in Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 297 S.W. 225, point at page 230, 53 A.L.R. 1147, said: “It is an elementary rule of law that, while a riparian, or another with proper authority, may construct dams in streams for the purpose of making reservoirs, still, in doing so, they are not permitted to flood the lands of other riparians, or to back the water past the line of other owners of- the streamway. (Citing many authorities.) * * * In Farnham on Waters § 547, supra, the author correctly states ’the rule: ‘Although, as will be seen in a subsequent section, there are few cases which apply to the damming back of water, the rule that to entitle one riparian owner to complain of acts of another he must show that he has been injured/those decisions are not only against the weight of authority, • but also are unsupported by principle. Any swelling of the stream over the line is an invasion of the rights of the upper owner, who
The foregoing opinion of the Supreme Court was handed down in 1927 and so far as we have been able to find the doctrine announced in that case has not been overturned. Moreover, the appellees under this record stand in position of violating the provisions of Art. 7589a, Vernon’s Ann. Civ.Stats. This article in effect provides that it shall be unlawful to divert the natural flow of surface waters in this state or to impound such waters in such manner as to damage the property of another by overflow of such waters so diverted or impounded, and that in all such cases the injured parties shall have remedies,- both in law and in equity, including damages occasioned thereby. The validity of this law was sustained in Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451. In Bass v. Taylor, 50 S.W.2d 853, 856, the Dallas Court of Civil Appeals, in construing this article, held: “Appellants present the theory that the right of appellees to prevent injury to their land, by the construction of the dam, should be measured by the balancing of equities between the parties, and offered to prove that damage in a lesser amount would be sustained by appellees than would be sustained by appellants and adjoining land owners, similarly affected, if the construction of the dam should be prohibited. The rule for balancing of equities does not apply in the instant case, for appellees have the statutory right to have the overflow water of Wilson creek to pass through natural channels.” It is true that our Supreme Court reversed the judgment of the Court of Civil Appeals and that of the district court and remanded this cause, but as we understand the opinion by the Supreme Court, 126 Tex. 522, 90 S.W.2d 811, it did not disturb the interpretation of this statute by the Dallas court. The same interpretation was given to this statute by the Amarillo Court of Civil Appeals in Nolte Irrigation Co. v. Willis, 180 S.W.Zd 451, point at page 455, writ ref. w. m., citing also 28 American Jur. 253, sec. 56. This court so construed the above article in Falls County v. Kluck, Tex.Civ.App., 199 S.W.2d 704, point at page 705. If we are correct in our construction of the above statute, then the trial court’s conclusion of law, wherein he held in effect that plaintiffs’ right to in-junctive relief in this case is limited by the general rule applicable to writs of injunction, is erroneous; and if we are correct in this view, then the trial court did not have the right to balance the equities of the parties in this case. See points 2, 3 and 4, in Falls County v. Kluck, supra, and authorities there cited. In this connection we think it pertinent to observe that we find nothing in appellees’ pleading on which they went to trial tendering the issue that the further lowering of the spillway would cause great hardship and loss to appellees, or that the granting of the writ directing appellees to' so lower their spillway would in reasonable probability result in greater hardship or loss to them than would result to appellant by refusal thereof. Believing that the factual situation in the case at bar brings it within the provisions of Art. 7589a aforesaid, our view is that the rule announced by our Supreme Court in Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 does not apply.
We think it is interesting to note that appellees consulted two surveyors with reference to the height of the dam in question prior to its construction and that each of these surveyors gave his report as to the proper height of the dam. After the dam was finished and the rains came, ap-pellees then discovered that they had the spillways to their lake and dam .higher than
It is true that appellant has not sustained any damage except that it has been deprived of ¾ of an acre of land, but under our system of jurisprudence (absent the provisions of Art. 7589a, supra) the appel-lees could not take the appellant’s land m any other tortious manner, except under the doctrine of the balancing of equities. The net effect of appellees’ conduct is to make ¾ of an acre of appellant’s land a part of their lake and they have no legal right to do so. Since the trespass is a continuing one and under the evidence adduced it can be avoided only by the lowering of appellees’ spillway, and since such conduct violates the provisions of Art. 7589a, supra, we think that appellant has the legal right to injunctive relief and that appellees should be required to lower their spillway so that their dam will not back water past their property line and on to and over the property of appellant. Moreover, we find in appellees’ first amended original answer on which they went to trial this averment: “Further answering, defendants now offer to do any and all equities that may be required herein under the doctrine of this court should said court deem same necessary and proper on the part of said defendants.” Since defendants have expressed a willingness to do equity, we see no reason why they should not be required to perform their legal duty and lower their spillway, so as to take the overflow water off of appellant’s tract.
Accordingly, the judgment of the trial court denying the injunction prayed for will be reversed and judgment is here rendered that the trial court issue its mandatory injunction commanding appellees to lower their spillway so that the dam will not back water past their own property line and onto the property of appellant.
The judgment .of the trial court is reversed and judgment is here rendered with instructions.