Hagins v. Wilson , 262 S.W. 770 ( 1924 )

On Motion for Rehearing. We did not hold that article 5011t, Vernon's Ann.Civ.St.Supp. 1918, limited or modified the common-law rights of the defendant or any one else. On the contrary, we held, and still hold, that this article is merely declaratory of the common-law rights and liabilities of riparian owners as they are recognized in Texas and stated by the Supreme Court in Fort Worth Improvement Dist. v. City of Fort Worth, 106 Tex. 148,158 S.W. 167, 48 L.R.A. (N. S.) 994. This article relates only to the diversion of surface waters, and that is exactly what appellee has done. In the case above mentioned the Fort Worth Improvement District, organized as such under title 73 of the statutes, and in the exercise of its right of eminent domain, had "constructed almost to completion a levee along the banks of said West and Clear forks of the Trinity river. By the Holley plant the levee is constructed on the west bank opposite to plaintiff's property. That the old pumping station stands on the Clear fork of the Trinity river near the confluence of that stream and the West fork, and the levee is constructed on the opposite side of the river. "`That before the construction of said levee these flood waters, which will now be confined within the levee, spread out over the valley in one continuous stream of water of approximately one mile in width with a depth of approximately two to five feet, and that said waters found their way back into the main channel farther down the stream.'" The result of the construction of these levees is described farther on in the opinion as follows:

"A basin of a given size is necessary to hold the water which naturally belongs to a water course, and if it is cut off on one side, it must be enlarged on the other; so that the raising of one of the banks, preventing the water from occupying the flood channel on that side, necessitates its occupying proportionately more space on the opposite side, and the increase of the water there must, of necessity, cause injury to the landowner; and the act is a direct violation of the maxim `Sic utere tuo ut alienum non lædas' in that, for the purpose of relieving his own property of a burden, the owner merely transfers it to his neighbor."

This language describes a physical fact and states a natural law known and understood wherever there are water courses and overflows. It exactly describes the conditions and the result disclosed by the record in the instant case. Regardless of the testimony of witnesses and the verdicts of juries to the contrary, courts must take judicial knowledge of all such plain physical facts and natural laws.

The appellee contends that this article of the statute relates only to the diversion of surface waters when the evidence shows that only the flood waters of Duck creek were diverted. We think a reading of the entire article clearly shows that by "surface waters" is meant overflow waters or such waters as during rains flow through any "gully, slough, ditch or other well-defined natural drainage." The civil engineer's map and evidence show that there was a slough through the appellees' land on the west side of the creek, and the uncontradicted evidence of appellants' witnesses shows that there was a lake or slough there several years before the flood of 1914, where early settlers obtained water by driving their wagons into it and tilling their water barrels. The term "surface waters" is defined in Harvey v. Northern Pacific Ry.,63 Wash. 669, 116 P. 464, 466, as waters escaping from the banks of a stream at times or flood as contradistinguished from waters of the stream in the absence of a flood, and it has also been defined as water derived from rains and melted snows. Standley v. A., T. S. F. Ry. Co., 121 Mo. App. 537, 97 S.W. 244; Edwards v. M., K. T. Ry. Co.,97 Mo. App. 103, 71 S.W. 366; Cairo, V. C. Ry. Co. v. Brevoart (C. C.) 62 F. 129, 25 L.R.A. 527; Abbott v. K. C., etc., Ry., Mo. 271, 53 Am.Rep. 5S1; Shane v. K. C., etc., Ry., 71 Mo. 237, 36 Am.Rep. 480; Morrissey v. O., B. Q. Ry., 38 Neb. 406, 56 N.W. 946, 57 N.W. 522; Crawford v. Rambo, 44 Ohio St. 279, 7 N.E. 429; O'Connell v. East Tennessee, etc., Ry. Co., 87 Ga. 246, 13 S.E. 489, 13 L.R.A. 394, 27 Am. St. Rep. 246; Jean v. Pennsylvania Co., 9 Ind. App. 56, 36 N.E. 159. While there are cases in other jurisdictions drawing distinctions between surface waters and other waters contrary to the definitions above given, it is clear from this record that the parties, the witnesses, the court, and the jury understood that the flood waters in this case were overflow waters described in the petition, and, as we think, are such waters as the Legislature intended in the enactment of the statute. The case was tried upon that theory below, and will be adhered to here.

It is true that Wilson testified that there was no slough leaving Duck creek on Carlisle's place and running through his land. While he is overwhelming contradicted upon this point the fact remains that during freshets flood waters covered the entire valley, and it is the diversion of this water by his ditch and embankment which is the basis of this suit, and the ditch and embankment constructed by him are stubborn and uncontradicted witnesses which destroy the entire theory of his defense and all evidence and findings of the jury to the contrary. The appellant does not, in his petition, complain of any water which the channel of Duck creek would hold, and he should not be made to suffer because this channel on Carlisle's land was clogged with driftwood or filled with sand. Such condition of the channel on Carlisle's land for which appellants are in no way responsible cannot justify the appellees in doing a thing directly resulting in injury to the appellants. The record shows that after the ditch, as originally constructed, from near the plum thicket on Carlisle's land, to the bed of the creek on appellees' land, did not protect appellees' land below the mouth of the ditch and west of the creek, that thereafter, as further protection, he built a levee upon the west bank of and parallel with the creek connecting with the lower end of the ditch and extending down the creek 150 feet. This levee was built by using railroad ties for posts, and with planks nailed to them, and with the addition of brush and wire netting. The tops of his posts were anchored to "dead men," buried in the bed of the creek. In building this 150 feet of levee he has done exactly what the Supreme Court said in the Fort Worth Improvement Co. Case, supra, a riparian owner had no right to do.

A flood of testimony was introduced to show that during overflows the water did not reach that part of the creek on Carlisle's land where the upper end of the ditch connected with the creek, but, on the contrary, that on account of the clogged condition of the channel on Carlisle's land the flood waters flowed across Carlisle's land and the Cheely place into Wilson's draw, and thence down across appellant's land. If this is true, then why did Wilson construct the embankment? If no water during freshets runs across the land, why does he object to the embankment being destroyed?

The fourth ground of his motion attacks that part of the original opinion in which we hold that, since Carlisle has filed no answer, the court should have granted an injunction as to him, requiring his land to be restored to its original condition. It is insisted that this holding is error, because "Wilson had the right for his own protection to resist the destruction or removal of the embankment and ditch by Carlisle or any one else." Protection from what? From flood waters, which one of his witnesses says "soaked into the sand" before it reached his embankment, and therefore never reached it? Or from flood waters that flowed east over Cheely and Carlisle's land and thence down Wilson's draw over Hagins'? If all this water flows east and disappears in the sand, then there is no necessity for his ditch and embankment. If it serves no useful purpose, and does not protect his land from overflow, then it should be destroyed, because, as described by the witnesses, it is certainly not ornamental, and tends in no way to beautify the landscape.

The motion is overruled.