Case Information
*1 Arrwrx~ 2,. TEXAS
Honorable !Brerstt H. Cain
Cotiaty Attorney
Chambers County
&wJuaa , Texas
Dear Sir: Opiaion Bo. O-2622
Rea tiabllity of drainage dis- triofs to outside individuals.
This depa+mt has received Pnd cmsidered your request fop an opinion. For coaveale~ae,ne shall quote the pertinent portion of your letter, as followsr
“A large part of Chambers County is draiaad Iz$r Spindle-top Qullay ahiah is a natural drain but insuffioient to adequately draintha p~rtioular section through which it flows. Chambers C0un-Q desires to oleaa out, widen and straighten said natural drain to 5mprove draiaage ofmid area Lut is unable to so alean out, widen aad straighten said drai* to its* mouth beoause it extends on into Jsffersoa County ahers Chrrmbers County has no control* Chanibers County has a drainage district extending to the county linei and has the co-operatioa of said drainage distriat. "If Chambers Couaty so opena this natrual drairc it is threatened with suits or suits for damages from landowners ia Jefferson County resulting from flooding of their lands which will probably ooour unless the Gulley is cleaned to its* muth and, OP the other brad, Chambers County must suffer continued flooding of its' lands and Iad drainage unless said drain is so improved.
*Please advise your opinion as to whether Chsmbera Couaty, under suoh air ownstames, would In liable for damages to landowners ia Jeffersoa Cow&y in event flooding of iheir lands resulted fromthe cleating out, widening and straightaaing of said Gulluy by Chpmhars Countye"
Drainage distniots are areaturea of the State'Legislaturet there- fore, any ooasideratioa of their rights aad liabilities wmld normally be gowra.4 by the stafutory provisions which am mspoasible for their existesioe. 1'7 &I. Jur. 789. Provisioa for drainage disrtrfots is mado in.ktioles 8097, et seq. of Vernon*8 Annotated Civil Statutes. Aa exam- inatikmofthe con~mlliag statutory provisions, howuwr,raosals ao anwser to your question.
A drainage district oam neither sue nor ba sued unlssa there exists express statutory authori~atioa. 9 R.C. IN 649. Article 8174, Vemon*s Civil Statutes, provides:
Hon. EVerott H. Cain, page 2 (O-2622)
"All distriots may, by and through their coavnissioners, sue and be sued inall OOUr% of this State, in the neme of such districts, and all oourts of this State shall take judioial notioe of the establisbez& of all suoh districts.
"Drainage districts . . . are politioal subdivisions of the State of the 6~ aature and stand upon exactly the seme footing as oour&ies, or pre- oiaots, or any of the other politioal subdivisions of the State." Jones V. Jefferson County Draiaage District, 139 S.'R. (2d) 861, error refused, and cases cited therein. L. R. A. lSlS>B, p. 1010.~~
Since drainage distriats are regarded as quasi public aorporations, and, accordingly, treated as aitil divisions of the State for gwenamental purposes, then, as a general rule, their liability for damages is control- led by the rules which generally determine the liability of governmental subdivisions. 9 B.C. 1. 650.
The mere fact that such distriots enjoy the status of being a civil or political division of the State does not totally inmurniee them against liability for their torts. The State itself must abide oertain limitations nith regard to the taking or damaging of private property for public use.
Se&ion 17 of Article 1 of the Texas Constitution provides: "No property shall be . . . damaged or destroyed for or ap- plied to publie use without adequate compensation being made . . ."
A drainage district can neither have nor olaim a higher right re- garding its liabilities than tie State iteself. Aacordingly, the dis- triot is subject to the Constitutional inhibition against taking, damag- ing or de.?troyiBg private property without compensation. Peart v.
Reeker, 12 So. 490.
But all damages to private property arising fromthe construction, maintenance, or extens$on of a public improvement are not included in the ooastitutional guaranty w Scme injuries are treated as dauunmz absque injuria. Jefferson County Drainage District v. IlcFaddin, 291 S.~W. 323, aff. 4 S.H. (2d) 33, Jefferson County Drainage District v. Langham (C.A.), 76 S.H. (2d) 484. For example, a district might oonstruot, impmve, or extend drains tompel surface water, and if done in a oarefil, reasonable, and prudent manner, esoape liability regardless of the geography of the land. See Jefferson Cot&y Drainage District v. McFadden, supra.
The old common law rule was that the governmental agency must aotually take the property for a publio use before the individual would be entitled to oompensationq Under that rule, no recovery could be had for mere ocllsequential injury to laad.
Today the rule is different. As set forth in 10 Ruliag Case Law,
at p. 167, the general rule isr
Hon. FWerett H. Cain, page 3 (C-2622)
"It is generally held that Amy definite physical injury to land or 99 iaVUSiOn of it oognisable to the seases, depreciating its market value, is a damage in the aonstitutional sease, regardless of whether it is such an imrjury as a neighboring owner might i~flicrt without liability at common law."
The Cormrission of Appeals in the ca8e of Jefferson fiunty Drainage Distrirt v. Langham, supra, has definitely placed Texas in Uat aptegory of juriadiotions which are liberal in their interpretation of what mnsti- ~. tutes property damage iB the oonstitutional sense.
In the Langham case the drainage distriatmade certain improvements. They straightened, deepened, and cleaned the aatural drainage system. The result of this project was to make @niBtiff'S land sore subject to ovs~- flow and the overflow waters would rise to greater heights." This land's situs ~8s outside that of the distriat's.
The Court held the district liable in damages in these terms: "Undoubtedly an aotion lies against the drainage distriot in favor of a citizen whose property is damaged as a result of the maintensnoe of drain- age improvements made by the distriot . . . The action lies even thou&r no negligenoe oathe prt of the district occurs in respect of the con- struction or mainteaanoe of the improvements."
To the defendant's oontentioa that the damage nas damnum absque injuria, the Court replied that the distriot did, to a certain extent, have the right to oolleot surface water within its territorial area and disoharge it into a natural outlet. LUt this right is not unqualified.
In conclusion, and a8 our conclusion, ue adopt the following sec- tion of the Court's decision in the Langham ease*
"One owning land on a water cour8e may by ditches and drains turn into it all the surfaoe water that muld naturally drain there, but he ma not thus discharge into the water oourse more water than it f
and thus burden his lower neighbor with more than is reasonable." fEi&coriag ours)
We note that you inquire *ether Chmabere County would be Liable in damages to Jefferson Oounty landowners in the Over& their lands were damaged by the propesed improvements. We are aware of no express law or laws authorizing any county inthis State to undertake any program as outlined in your letter. Article 8997, Vernonls Annotated Civil Statutes, for the establishmeart of drainage di&triots withinthe counties. provides Cbviou~ly, the frsgislature, bythe enaatmat of that statutory p~rovisions, intended to provide a method whereby counties might effect or improve drainage. That method provided by the Legislature should be followed where applioable.
Hon. Everett Ii. Cain, page 4 (O-2622)
Rowever, in whatever form you iatimded to Pram your question, the liahilityfor damagae shall be govamed ly those rules aunounwd in the foregoing3 nolmith&andiag, whether you oomsider them a8 counts liabilities or drainage district lialdlities. This is true for reasoa that drainage distriots aud oounties "atand oa the same Pooting' and their liabilities are adjudioaiad aoeordimgly. Jones V. Jefferson i&m&y Drainage District, supraj Wharton Couaty Drainage District V. Rigbee (Civ. App.), 149 S.W. 381 (Wit ref.), 9 R.C. L. 650.
We do not intend aqy implication that Chamlmrs County would be authorized to inaugurate or carry out the outlined progma in its individ- ual oapaoity a6 a county.
Trusting that the foregoing affords an ausmr to your questions, we remain
Very truly yours ATTORNEY GEtJERbL OF TEXAS By /IX/%. J. Faming WI.J.F~nning GVTrRSlOgW Assistant By /e/ Grundy Williams Gruudy Williams APPRCV-RD SEP 6,194O /s/Gerald C. ku APPRovEiD ATTORNEY GENFRAL, OF TEXAS
Opinion Committee By B.W B Chaiman This Opinion Considered and Approved
in Limited Conference.