162 S.W.2d 1046 | Tex. App. | 1942
This is an appeal from an order of the trial court sustaining a special exception to plaintiffs petition, in which exception it was claimed that the petition disclosed plaintiff's cause of action was barred by limitations when suit was instituted. Plaintiff declined to amend and the suit was dismised.
Plaintiff Charles Stillwell instituted this suit against defendant City of Fort Worth by petition filed February 22, 1941. His allegations, in substance, are: That for twenty-five years he had been the owner of about six acres of land in said city, describing the land. That in 1933, without his permission and over his protest, the defendant dug a ditch across his land for the purpose of draining surface water from a designated area; that substantially at the same time defendant constructed a system of storm drains in that area; that the territory so drained consisted of 75 or 100 acres, much of which is covered with paved streets and houses, all of which prevented the water from soaking into the ground; the drainage system converges onto plaintiffs property and is forced to pass through the ditch so dug thereon; that the drainage is unnatural; that by subsequent street improvement projects the area served by said drainage system has been enlarged; that prior to the construction of said storm drainage system the water from said area had not flowed over his premises; that since its construction and operation much of plaintiff's land has been washed away. That by forcing said water out of its natural course and the resultant destruction of portions of his land, plaintiff has been deprived of the use and value thereof without just compensation. It is further alleged that the storm drainage system is a permanent structure; that more territory has been laid out to be served by the system than was served by it when originally constructed and that as more streets are paved in the area more water will be forced onto plaintiff's land and greater damage will be done. That said system is now and will continue in the future to be a permanent damage to and an appropriation of plaintiff's land. He prayed for $3,000 damages.
Defendant urged a special exception to the petition based upon the fact that the petition disclosed upon its face that any cause of action plaintiff ever had was barred by limitations at the time of the *1047 institution of the suit. The exception points out the various material allegations of plaintiff, relied upon as disclosing its infirmities. As stated above, the exception was sustained, the case dismissed and appeal perfected.
The sole question before us is, whether or not the court properly sustained the special exception.
Based upon plaintiff's allegations, the defendant, without his consent and over his protest, unlawfully invaded his property in 1933 and dug a ditch across it and at about the same time constructed a system of storm drains or sewers in an area lying west, northwest and southwest of plaintiff's premises and caused large quantities of flood waters to be diverted from their natural courses onto and across his property, resulting in the damages claimed, and as more streets in the area are paved more water will be forced over his premises.
We think that plaintiffs cause of action arose in 1933 and falls within the rule announced in Houston Water Works Co. v. Kennedy,
Plaintiff (appellant) insists that his petition only sought recovery for damages incurred during the two years next preceding the filing of suit. It is obvious that if we are correct in concluding that plaintiff's cause of action arose at the time his property was wrongfully invaded by defendant, and that he could then have recovered all permanent damages to his property, he could not wait until limitation had barred his suit and recover at a later date for damages that were recoverable when his cause of action arose in 1933.
Plaintiff relies upon cases like City of Houston v. Merkel, Tex. Civ. App.
The trial court properly sustained the special exception to the petition, under the applicable Rules of Civil Procedure, and upon plaintiff's declining to amend, dismissed his suit. The judgment will be affirmed, and it is so ordered.
McDONALD, C. J., not sitting.