Abilene Light Water Co. v. Clack , 58 Tex. Civ. App. 129 ( 1909 )

M. M. Clack recovered judgment against the Abilene Light Water Company for damages growing out of the maintenance of a dam across Lytle Creek, near the city of Abilene, by which water was caused to back over about ten acres of land, rendering the same wholly useless, and to recover a further sum which he was forced to expend in repairing a bridge across said creek. In addition to the general issue the defendant pleaded the statute of limitations of two years, and upon this appeal insists that the trial court should have given its requested summary instruction in view of the undisputed evidence.

With respect to the bridge, it is insisted by appellee that the Lytle Water Company, appellant's predecessor, erected the dam, and shortly thereafter, in pursuance of an agreement to do so, constructed a bridge across the creek to furnish him passage from one part of his land to another, and agreed to maintain the same; that this appellant bought the property of the Lytle Water Company in the year 1906. This agreement on the part of the Lytle Water Company was verbal. It does not at all follow from this that appellant is liable on the covenant of the Lytle Water Company to maintain the bridge. On the contrary, it is undisputed that appellant became the owner of the property of the Lytle Water Company at a receiver's sale, and had no notice whatever of its agreement with appellee concerning the maintenance of the bridge. This being true, and the appellant having in no manner voluntarily agreed to maintain the bridge, it can not be held liable for appellee's expenses in repairing it.

It remains to be seen then if in any event appellant is liable for the damages growing out of the overflow of appellee's land. The appellee thus states his contention in this respect: "In 1898 and 1899 the Lytle Water Company raised the dam about thirty-two inches higher to its present height, and the dam has been maintained at this height to the present time, and this increase in the height of the dam caused water to back over ten or twelve acres of appellee's land. The Lytle Water Company paid him one hundred dollars a year on account of this overflow and the backing of water while it owned the property, and during the two years prior to the filing of this suit water had stood on the land from six weeks to three months during the year and part of the spring and summer; the lake is full from one to two times each year and covers this land from six weeks to six months each year; when the water goes down in the lake the water goes off the land, leaving it dry for a portion of each year, but not long enough to enable him to cultivate a crop on the land." In his testimony appellee further stated: "That when the water is not on the land it is boggy and the water rises on it; the grass will not grow on it, and the land is not worth a button, by reason of the dam being erected and raised. That this condition of affairs has been the same since Lytle Water Company raised the dam in 1898 or 1899, and since the dam was raised he has abandoned the use of it for cultivation, as it has been worthless for that purpose since said time."

As before stated, this suit was filed in 1908. Under these facts we do not think appellee was entitled to recover anything, and our conclusion is predicated, of course, upon a holding that his cause of action as to the land in controversy arose when the Lytle Water Company raised the dam to its present height, thereby submerging appellee's land. It is perfectly apparent to our minds that the dam across Lytle Creek is a permanent structure, and that upon its being raised so as to inundate appellee's land in the manner shown by his testimony, he could at once have instituted suit for his damages. If he could have sued then he ought to have done so, and if he failed, he was under the penalty of a bar by the statute of limitations. Where the structure constituting a nuisance is permanent and the injury is constant or certain to occur, then the whole damage may be recovered at once. Texas Central R. R. Co. v. Brown, 38 Texas Civ. App. 610[38 Tex. Civ. App. 610], and authorities there cited. It is further worthy of notice that no special damages occurred during the two years immediately preceding the filing of this suit, but the conditions were identical with those existing for many years prior thereto, thus showing clearly that the real cause of action asserted in this suit accrued with the raising of the dam.

It is perhaps well to notice one further contention of appellee. It is insisted that limitations could not run, because after Lytle Water Company raised the dam to its present height it paid appellee in compensation for his damages the sum of one hundred dollars per year until it failed in business and the appellant became the owner of its property. But this does not at all follow. The mere fact that Lytle Water Company paid to appellee the sum of one hundred dollars per year damages does not at all show that his cause of action had not fully accrued when the dam was raised, or even held in abeyance the statute of limitations. There is neither pleading nor evidence to show that appellee's cause of action was merged in a contract whereby Lytle Water Company undertook to pay the sum of one hundred dollars per year, even if that would affect the question.

We see no way to avoid the conclusion that the statute has long ago barred the appellee's right to recover, and the judgment in his favor is therefore reversed and judgment here rendered for appellant.

Reversed and rendered.