168 S.W.2d 292 | Tex. App. | 1943
Suit by Malone against the State and the Highway Commission for compensatory damages for destruction of growing cotton and pei-mauent injui-y to the soil on Malone’s irrigated farm in El Paso County, allegedly caused by the construction and maintenance of State Highway No. 1 (National Highway No. 80) in such manner as to impound upon the farm flood waters from heavy rains in June, 1930, and August, 1931. The suit was brought under legislative permission and liability was predicated upon Art. 1, Sec. 17 of the State Constitution, Vernon’s Ann.St., providing that “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” The judgment was in favor of Malone upon a special issue verdict, and the State and Commission have appealed.
The points upon which the appeal is predicated may be epitomized as follows:
1. The acts complained of occurred in 1920, at which time “there was no State Highway Commission,” were performed by no agency of the State, and the State was not liable therefor.
2. The action was one sounding in tort, for which the State was not liable.
3. Malone did not own the land when the highway was constructed (1920), and therefore he could not recover.
4. The evidence of extent of injury was of too uncertain a character to meet the legal test of probative value.
5. The evidence showed conclusively that there were other causes, including acts of Malone, contributing to the injuries.
6. The court improperly defined “unprecedented rain.”
Preliminary to a consideration of these points, we make the following general statement:
The State Highway Commission was created in 1917 by Chap. 190, p. 416, Acts Reg.Sess. 35th Leg., Vernon’s Ann.Civ.St. art. 6663 et seq. The following provisions of the Act will suffice for our present purposes :
It created “the State Highway Department, the administrative control of which shall be vested in the members, of the State Highway Commission and the State Highway Engineer hereinafter provided for.” (Sec. 1.) “The Commission shall formulate plans and policies for the location, construction and maintenance, in cooperation with the counties of the State, or under the direct supervision. and control of the State Highway Department, of a comprehensive system of State Highways and public roads.” (Sec. 3.) The Department was charged with the duty of collecting information and compiling statistics “relative to the mileage, character and condition of the public roads in the different counties of the State, and the cost of construction of the different classes of roads in the various counties. It shall investigate and determine the methods of
The work done on the highway was under a contract between El Paso County and a construction company. The plans for this work had been approved by the Highway Engineer, and the commissioners’ court approved the contract subject to approval of the Highway Commission. The legislative resolution authorizing the suit recited that “said highway was then under the control and supervision of the State Highway Department, said highway being known and designated at that time as a State highway.” The contract,was dated October 26, 1920, and provided for completion not later than March 31, 1921. It was on a printed form headed: “State Highway Department. Contract.” The job was “to grade roadbed and construct culverts” and was designated “Job No. 72-B-S.A.P. 108,” meaning “State Aid Project No. 108.” It contained a clause with reference to the employment of labor in accordance with the Federal Aid Act, 40 Stat. 1201, § 6. The work was to begin “at Station 12 near Fabens and extend thence to Station 677 91.4 or as far as the money available will construct in accordance with provisions of the State Statutes and of the notice to contractors, specifications, proposal and plans marked-annexed hereto, and made a part hereof.” It was approved by the State Highway Engineer November 12, 1920. At the time the contract was made the road constituting the highway occupied an old abandoned dump constructed by the T. & P. Ry. This dump extended in a southeasterly direction on a slightly down grade along the south or southwest line of the farm in question. The G. H. & H. Railroad was immediately to the north of the dump, and paralleled it from the N. W. corner of the farm to a point near its eastern boundary where the railroad curved to the east and passed through a cut some 15 feet deep onto an arid plain of higher elevation. An arc-shaped escarpment about 15 feet high extended from a point on the N. W. line of the farm some 600 yards from its N. W. corner to the point where the railroad curved eastward. Two large arroyos cut through this escarpment and afforded natural drainage of storm waters from the plain at the N. W., N. and N. E. The farm land was situated 'between the escarpment and the railroad; and waters from these arroyos, under natural conditions, would “fan out” over the farm land and eventually pass off through four culverts, one near the N. W. corner of the farm, another near the eastward ■ curve of the railroad, and the two others in between. The drainage according to the
The above statement is taken from the evidence viewed most favorably to Malone, and does not take into account conflicts therein, since the latter do not concern this appeal.
Appellants’ first point, that the State was not liable because the acts complained of were not those of the State nor of an authorized agency of the State, seems to be predicated upon the hypotheses that (1) there was at that time existent no agency authorized to bind the State in the construction and maintenance of highways; and (2) the contract for the work was with El Paso County, and the county alone was liable for any injury thereby occasioned.
The public road constituting the highway had no doubt been in existence many years. In what manner the right of way was acquired does not appear from the record. But at what time or in whatever manner it was acquired the ownership -was in the State. This question, is fully discussed with citation and analysis of authorities in Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915. We deem it necessary only to state the holding in that case which is embodied in the following quotations from the syllabus:
“Public roads belong to the State and not to the counties. While the title thereto was taken, under statutory authority, in the name of the counties and. they were*297 charged with construction and maintenance within their boundaries, this was for the benefit of the State and its people.
“The establishment of public highways being primarily a function of government belonging to the State, the Legislature may exercise possession and control of them through such agencies as it may designate, in the absence of constitutional restrictions.”
We are not here concerned with the liability vel non of the State for acts of the county in this regard performed prior to or independently of the above Act of 1917, creating the State Highway Department and Highway Commission. The record shows that this was a state aid project, performed under contract approved by the State Engineer on a printed form of the Highway Department. The Act required, as a prerequisite to allotment of state aid, that “such roads shall be ■ constructed according to specifications and under the supervision of the highway engineer.” While the counties were charged with the maintenance it was required to be “in accordance with plans approved by the State Highway Department,” and failure to so maintain was penalized by forfeiture of state aid “until such maintenance work shall have been done.”
We think it is clear that the construction of any portion of a highway as a state aid project constituted a complete assumption by the State of the construction and maintenance thereof. Whatever duties in relation to such construction and maintenance were imposed by the Act on the county were so imposed in furtherance of that assumption. The county acted in that matter as agent of the State, and its acts were the acts of the State to the extent in any event that they were done with the approval and under the supervision of the Highway Engineer. There is no intimation in the record that they were not so done, and they will be presumed to have been so done, absent showing to the contrary. We hold that the liability of the State is the same as it would be had the work been done under contract direct with the Highway Department with legislative sanction.
Appellants’ second point that the action is one sounding in tort is predicated upon the assumption that the State owes to landowners the same duty that is imposed upon railroads by statute to provide, in the construction of their roadbeds, the necessary drainage facilities in accordance with the natural lay of the land; and that a failure to discharge that duty constitutes negligence. The pleadings and evidence show (it is asserted) that this duty was not performed, and that the asserted injuries resulted from such nonperformance, from which it follows conclusively that the State is not liable. If this contention embodied a correct statement of law, there could be no liability on the part of the State for flooding one’s land by highway construction, because the asserted duty must necessarily be an absolute one, and its nonperformance an act of negligence as a matter of law. That this asserted principle of law is not a correct one is ruled by the case of State v. Hale, Tex.Civ.App., 96 S. W.2d 135, affirmed as to this point in 136 Tex. 29, 146 S.W.2d 731. We would rest our decision upon the bare citation of this authority, but for appellants’ earnest insistence that the Supreme Court decision in the Hale case supports their contention.
This exact question was raised in the Hale case; and it was there held that the liability of the State was not predicated upon a tortious act, nor upon any breach of duty which it owed the landowner (other than the duty imposed by the constitution to make “adequate compensation” for property “taken, damaged or destroyed for or applied to public use”). The damage here complained of was clearly for a public use. The construction and maintenance of the highway were acts of the State, performed by its authorized instrumental-ities. The State manifestly could not construct or maintain highways except through its agents. To those agents is delegated the manner in which such construction and maintenance are to be performed. This necessarily confers a wide discretion involving skill and judgment in both engineering and financing. Where, as here, the liability of the State is predicated upon acts of its agents in the performance of their duly delegated discretionary duties, whether there were errors or mistakes of judgment in the performance of those acts are not matters of judicial inquiry. We refer in this connection (without quotation) to paragraphs. [9] and [10], page 139, col. 2 of our opinion in the Hale case in 96 S.W.2d. If a case should ever arise in which “acts of the highway commission in carrying out the legislative mandate” were “so arbitrary and unreason
Appellants rely strongly, in this regard, upon the phrases which they have italicized in the following quotations from the Supreme Court’s opinion in the Hale case [136 Tex. 29, 146 S.W.2d 737]:
“The liability of the State under Section 17 of Article 1, supra, for taking, damaging, or destroying private property for public use, where the authority is properly exercised, should not be confused with the claim for damages caused by the negligent acts or wrongs committed by its agents or officers. * * *
“It [the Highway Commission] has the right, as the agent of the State, to take, damage, or destroy private property for public use. This right has been guaranteed by our Constitution. Public roads are a great public convenience, and, if necessary to carry out plans for the completion of a public road, private property may be totally or partially taken or damaged to accomplish that purpose. This carries with it the power, if need be, that a servitude may be created on land not actually taken or occupied by the public highway, for the purpose of carrying off the water, the natural flow of which is changed or diverted by the construction of such highway.”
It must be borne in mind that this language was used in considering the exact question now before us in connection with an exact factual situation, the construction of a highway without providing sufficient drainage facilities. So considered, it can not be construed as to preclude liability of the State where the commission has failed to provide such drainage facilities.
The precise question which appellants seek to raise under point three is not entirely clear to us. We therefore quote in' full the point and its treatment in appellants’ brief (omitting transcript references) :
“Point Three: The error of the court in rendering judgment for the plaintiff for damages to his land because of the construction of the highway complained of, since, indisputably the plaintiff did not own such land at the time such highway was constructed.
“The above point is here made, because, as we have seen in the arguments under the preceding Points One and Two, the case was pleaded and submitted upon the theory that the State had constructed the road involved, which, as has further been shown, is indisputably refuted.
“The case having been tried upon a false theory and an adverse judgment suffered by the defendant, it cannot be said that the error is harmless, and that the jüry was not misled thereby, especially in view of the fact, which is undisputed, that plaintiff did not own the property involved at the time of the construction of the road, but acquired it long thereafter, towit, in 1927.”
The assertion that “the theory that the State had constructed the road * * * is indisputably refuted,” is fully considered under point one, above.
Malone’s brief treats this point as asserting in effect the proposition that the cause of action arising from construction of the highway arose when the construction was completed and did not pass to Malone as an incident to his subsequently acquired title to the land. The highway was constructed upon the right of way owned by the State and there was no invasion of any portion of the land which Malone subsequently acquired. The rule is well established in this State that the cause of action for damages so occasioned accrued when the injury occurred and to the then owner. Austin & N. W. R. Co. v. Anderson, 79 Tex. 427, 15 S.W. 484, 23 Am.St.Rep. 350; Clark v. Dyer, 81 Tex. 339, 16 S.W. 1061; Parsons v. Uvalde E. L. Co., 106 Tex. 212, 163 S.W. 1, L.R.A. 1916E, 960; St. Louis S. W. R. Co. v. Clayton, 54 Tex.Civ.App. 512, 118 S.W. 248, error refused; 35 Tex.Jur., p. 191, § 125.
We gather from their supplemental brief that appellants seek to urge substantially the following ground in support of this point:
The injury recovered for arose from “maintenance” (for which the State was not liable) and not from “construction” of the highway. It is urged in this connection that the liability of railroads in this regard arises by virtue of the statute (Art. 6328) which imposes the duty not only to “construct” but to “maintain”, etc. The statute does not expressly require anything but “construction”. It does impose
Appellants’ points fourth and fifth will be considered together. They are predicated upon the assertion that the evidence shows conclusively that the damages proved were the result, at least in part, of causes other than the construction of the highway, and that there was no basis in the evidence for a segregation of the amount of these damages from those caused by the highway construction. These contributing causes consisted in putting the land in condition for irrigation, and drawing the alkali from the subsoil as a result of flooding the land with irrigation water. We are asked to take judicial knowledge of this latter phenomenon, no evidence being introduced to support it.
The evidence will abundantly support the conclusion that the highway construction was the sole proximate cause of the injuries. We briefly summarize it:
The farm land was protected by the drainage ditch outside the irrigation ditch and none of the flood waters flowed directly upon the farm land. The inundation was caused solely by the damming up of the flood waters by the highway embankment. In addition to direct evidence to this effect, it was shown that after the openings were placed in the highway following the August, 1931, flood there were other floods of equal or greater volume than those in issue, and that these flood waters were disposed of by these openings and no inundation or damage resulted.
As to putting the land in irrigable condition : this consisted, in addition to its clearing and leveling, in constructing borders about one foot in height to retain the irrigation water until it was absorbed by the land; the contention being that these borders would have retained the flood waters on the land even had there been no highway there. The evidence shows, to the contrary, that (1) 'the farm land would not have been flooded at all, absent the highway, since- the flood waters would not have flowed on the land, and (2) the water that would have been retained by the borders, if in fact sufficient to produce injury, could readily have been drained off by cutting the borders. It is manifest that no drainage of the land inside the borders could be effected until the level of the impounded water dropped below that of the border-enclosed land.
We may assume that water from irrigation, if in sufficient volume, will have the same effect as flood waters in drawing up the alkali from the subsoil. But the evidence negatives damage from that source. The land was included in a large irrigation project extending many miles below El Paso in the Rio Grande Valley. That the entire project was conducted scientifically with reference to known impediments may be assumed even in the absence of affirmative proof. But the proof affirmatively shows that this particular source of injury to the land had been guarded against by means of subsoil tiling which carried off any excess of irrigation water which might tend to water-log the land or raise the water table. If, with this precaution, the necessary effect of applying the proper amount of irrigation water to the land under approved methods, would be to bring the subsoil alkali to the surface and thus destroy the land for farming purposes, the whole irrigation project would no doubt prove a failure after a few years of operation. We cannot take judicial knowledge of such consequences; and they are negatived by the plaintiff’s evidence, which was not refuted.
Appellants also contend that the State’s liability extends only to injuries to the land in its condition when the highway was constructed, and it cannot be held responsible for injuries to land that
As to appellants’ point six: The court’s definition complained of reads: “By the term ‘unprecedented rain’ as used in this charge is meant such an unsual and extraordinary rainfall as has no example or parallel in the history of rainfall in the general vicinity affected, or as affords no reasonable warrant or expectation that it will likely occur again, and so could not reasonably be expected, even at long intervals.”
The objection leveled at this definition was that it is “too restrictive against defendant, in that it requires the same to be without ‘example or parallel’, .whereas a rain is unprecedented when it could not have been reasonably anticipated or reasonably to be expected.”
In connection with this objection appellants tendered the following definition, which was refused: “By the term ‘unprecedented rainfall’ as used in this charge is meant an unusual and extraordinary rainfall in the particular locality in question, affording no reasonable expectation that it would have likely occurred.”
The definition given embodies the correct definition, and that tendered does not. “Unprecedented” means “having no precedent or example; novel, new, unexampled.” Webster’s Int. Diet. “Unusual” and “extraordinary”, on the other hand, presuppose other like occurrences, though rare or infrequent. The rule which the courts have applied in relation to floods is embodied in the following quotation from Gulf, C. & S. F. R. Co. v. Pomeroy, 67 Tex. 498, 3 S.W. 722, 724: “If, when the work is being constructed, extraordinary inundations have occurred within the memory of men then living, their recurrence should be anticipated, and provision made against the danger likely to result from the works should a recurrence of the flood take place.”
Furthermore, the evidence would not in our opinion support a finding that either of the floods complained of was unprecedented.
The trial court’s judgment is affirmed.
Affirmed.