559 S.W.2d 672 | Tex. App. | 1977
OPINION
The Plaintiffs, Appellants, as landowners and irrigators sued the City of San Antonio to recover damages for breach of contract occurring when the City stopped transporting sewage effluent from its Rilling Road Sewage Treatment Plant through a long established open canal. Trial was to a jury, but upon the termination of the Irrigators’ case the trial Court granted the City’s motion for an instructed verdict and entered judgment for the City. The-Plaintiffs/Irri-gators present points that a breach of their contract has occurred; that the City has taken or damaged a valuable property right associated with their lands without adequate compensation being made in violation of Article 1, Sec. 17, of the Texas Constitution; and that the City has benefited through an inequitable and unjust enrichment. We affirm.
At least since the turn of the century, the City of San Antonio has by contract turned certain effluents from its sewage system into Mitchell Lake, the effluent being used by neighboring property owners for the purpose of irrigation. A concise presentment of the factual background to this case is made by the City in its brief as follows: (1) The original controversy is revealed in the case of City of San Antonio v. San Antonio Irrigation Company, 118 Tex. 154, 12 S.W.2d 546 (1929). (2) On May 30, 1932,
The City’s position is that it is ready, willing, and able to provide and to have available to the Plaintiffs/Irrigators the effluent for irrigation purposes from the underground pipeline constructed in 1962 or the Mitchell Lake reservoir and is in compliance with the terms and conditions of the 1932 ordinance contract. The Plaintiffs, conceding that they have the right to take the effluent from either the underground pipeline or from Mitchell Lake, contend and show that neither of these methods of obtaining effluent is economically feasible for their farms, while the taking of the effluent from the abandoned open canal is an economic necessity due to its elevation and its proximity to their respective properties and existing ditches.
The primary issue for determination is whether there has been any breach by the City of the 1932 ordinance contract. By its terms, that contract rescinded the former contract dated 1901, referred to in the opinion of the City of San Antonio v. San Antonio Irrigation Company, supra, and settled that suit. The ordinance contract then granted to the City of San Antonio an easement to make and maintain the open canal to Mitchell Lake and to make and maintain the reservoir at Mitchell Lake for all sewage which the City might convey to it. The contract provided that the Plaintiffs’ predecessors in interest were granted a sewage water right of 10,000 acre feet a year from the then existing outfall sewer and/or any outfall sewer that might be built and which could be taken from the canals or from Mitchell Lake reservoir until September 11, 2001, the same to be taken by Plaintiffs’ predecessors from the canals and the reservoir at places to be chosen by them, the contract providing that they were not obligated to take any sewage except such part as they might choose to demand.
Of controlling importance and determining the issue is Paragraph 41 of that ordinance contract. That Paragraph provides as follows:
“This grant shall never mature into a vested right which would require compensation to the grantees, their heirs, successors or assigns, if the governing body of the City requires a change in the method of sewage disposal, which would cause*674 the City to abandon the use of the canals and of the reservoir, and dispose of the sewage at some other place, and deprive the grantees of the sewage, and terminate this contract.”
As seen, the governing body of the City required a change in the method of sewage disposal which caused the City to abandon the use of the open canal. The Plaintiffs argue that the City is liable, however, because the change in the method of sewage disposal caused abandonment of only a portion as opposed to the entire system. To read that contention into the contract would be to require that the City close the open ditch adjacent to the Villa Coronado Subdivision and convert it into a closed conduit at a considerable expense. To the contrary, there is no requirement in the contract for the City to spend public funds to alter or modify its sewer facilities for the protection and preservation of the Irriga-tors’ private interest. Also, to read the Plaintiffs’ position into'the contract would be to read an implied obligation on the part of the City to finance at public expense the avoidance of any future event unforeseen and uncontemplated in 1932 which might have a detrimental effect on the Irrigators’ rights.
The City, as a political subdivision of the State, could not contract or surrender away its police or governmental powers. To follow the contention of the Plaintiffs would be to read the contract in a way which would inhibit or restrict the City in its free exercise of those governmental powers. Clear Lake City Water Authority v. Clear Lake Utilities Company, 549 S.W.2d 385 (Tex.1977). We hold that the City, under the terms of the ordinance contract, could cease to discharge effluent through the open canal and use the underground pipeline constructed in 1962 without having committed a breach of its contract. Stevenson v. City of Abilene, 67 S.W.2d 645 (Tex.Civ.App.—Eastland 1934, writ ref’d). The Plaintiffs’ first point contending to the contrary is overruled.
Since we have determined that there was no breach of contract, the Plaintiffs’ two remaining points, being premised that a breach of contract occurred, present no error and are overruled. The judgment of the trial Court is affirmed.