OPINION
Aрpellant, Robert E. Sage, plaintiff below, appeals the dismissal without prejudice of his suit for damages due to flooding of his property. The basis for dismissal was Sage’s failure to state a cause of action and refusal to replead his petition. In two points of error, Sage alleges the trial court erred in dismissing his suit and that the dismissal violated article I, section 13 of the Texаs Constitution, the “Open Courts” provision.
We affirm.
As this appeal is from a dismissal of the law suit, we have no evidence in the record to consider. However, a short restatement of the facts allеged by Sage is necessary to consider his appeal. Sage alleged he and Wong were adjoining land owners with retail businesses. Wong’s building burned, and he neither repaired nor rebuilt the structure. Thereafter it rained and water flowed downhill from Wong’s property flooding Sage’s. Wong did nothing to alleviate the flooding of Sage’s property. Sage will suffer damage hereafter from flooding so long as it rains in Denton County, Texas, if Wong does not cure the condition of his property.
The standard for adequacy of pleadings is set out in TEX.R.CIV.P. 45. In pertinent part the rule states: pleadings shаll “consist of a statement in plain and concise language of the plaintiff’s cause of action or the defendant’s ground of defense, that an allegation be evidentiary or be of legal conclusion shall not be grounds for objection when fair notice to the opponent is given by the allegation as a whole.” TEX. *884 R.CIV.P. 45(b). Rule 47 continues and commands that a pleading contain “a short statement of the cause of action sufficient to give fair notice of the claim involved.” TEX.R.CIV.P. 47(a).
Interpreting these rules, Texas courts have said “fair notice” means the pleadings are “specific enough that an opposing attorney, of reasonable competence, with the pleadings before him, can ascertain the nature and basic issues of the controversy and the testimony probably relevant.”
Rodriguez v. Yenawine,
In this case Sage’s petition attempts to allege causes of action in negligence per se and private nuisance. We find the trial court was correct in dismissing Sage’s petition because neither cause of action alleged the essential element of proximate cause.
With respect to the negligence per se cause of action, Sage’s petition alleges that appellee, Wong, violated numerоus ordinances of the city of Denton concerning building standards. A cause of action based on negligence per se may arise where the defendant’s act or omission is shown to be a proximate cause of the plaintiff’s injury, and where that act is in violation of a statute or an ordinance.
See Nixon v. Mr. Property Management,
Sage has failed to meet these requirements. He argues on appeal that he complained at trial that wаter was impounded in Wong’s burned-out building on the adjoining land and flooded over into his building causing damage. However, nowhere in his petition did Sage connect any of the alleged ordinance viоlations with the flooding of his property, nor did he allege that water collected on Wong’s. The ordinance violations he complains of concern maintenance of walls and foundations, weatherproofing, rodent and vermin infestation; all designed to provide for safeness, sanitariness and appearance of the premises. Further, a careful reading of Sage’s pleadings about the ordinances violated reveal Sage’s water damage is clearly not the type of injury the ordinances were designed to combat. He allegеd no resulting harm of the type expected from a violation of any ordinance involved, and no causal connection between any violation alleged and the harm he sufferеd.
The second cause of action Sage attempts to allege is that of private nuisance. In order to have a cause of action in nuisance, the facts must support оne of three things: (1) an intentional invasion of another’s interest; (2) a negligent invasion of another’s interest; or (3) other conduct, culpable because it is abnormal and out of place in its surroundings so that it invades another’s interest.
See City of Texarkana v. Taylor,
Although not all nuisances are grounded on negligence, where negligence has created or contributed to the creation of a nuisance, such negligence should be alleged.
King v. Columbian Carbon Co.,
Again this cause of action fails because Sage did not allege the breach of any legal duty or any proximate cause in his petition. Sage’s petition, which he refused to amend below, alleges:
the [plaintiff] suffered water damage from the rains on the above dates beсause his property at 225 North Locust is many inches lower in elevation than the property of Defendant Wong at 221-223 North Locust. As a result of the natural forces of gravity, as well as the natural propensity of water to migrate, the water which falls on the Defendant’s property consequently migrates into the building of the plaintiff.
This migration has caused interference with the Plaintiffs business ... and damages to the furniture, carpet and walls of the Plaintiff.
The petition does not allege any causal link between Wong’s burned-out building and the flooding, except for a brief mention elsewhеre with respect to mitigation of damages. Sage should have alleged a cause of action similar to that which he raised by argument in his brief on appeal to this court, the only plаce where he includes any sort of proximate cause allegation:
That as a result of there being no roof on Appellee’s building, and Appellant’s property being lower in еlevation, water became trapped on Appellee’s property and then migrated many times into Appellant’s property ... [Emphasis added.]
Nowhere in his trial pleadings did he make such an аllegation; rather, he plead only that Wong’s building burned and that water flows downhill. We hold the trial court properly dismissed the suit for failure to state a cause of action. Point of error onе is overruled.
In point of error number two Sage alleges that the trial court violated the “Open Court’s” provision of TEX. CONST, art. I, sec. 13. Sage neglected to state any reasons why this provision оf the Constitution had been violated.
Although the clause is not stated in the language of due process, the provision is clearly a due process guarantee.
Sax v. Votteler,
In order for a litigant to invoke the “Open Courts” provision, he must show thаt his cognizable common law cause of action is being restricted by a statute, and that the restriction is unreasonable or arbitrary when balanced against the purpose and basis оf the statute.
Sax,
Sage has not been denied access to the courts of this state. The suit was not dismissed until Sage refused to replead his petition after the trial court sustained Wong’s special exceptions, and Sage chose to rest on the pleadings in his “Fourth Amended Original Petition.” Additionally, the suit was dismissed without prejudice. Clearly Sage has suffered no denial of access to the court. Point of error number two is overruled.
The order dismissing Sage’s case for failure to state a cause of action is affirmed.