Sullivan v. Dooley

• Citation: 73 S.W. 82
• Parties: SULLIVAN v. DOOLEY.
• Decision Date: 11 March 1903
• Court: Court of Appeals of Texas

73 S.W. 82

SULLIVAN v. DOOLEY.

Court of Civil Appeals of Texas.

March 11, 1903.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Suit by J. A. Sullivan against M. C. Dooley. From a judgment for defendant on sustaining a demurrer to the petition, plaintiff appeals. Reversed.

Ford & Crawford, for appellant. M. L. Dye, for appellee.

FLY, J.

Appellant applied for an injunction to restrain appellee from erecting a levee along the banks of a creek which formed the boundary line between the land of appellant and appellee. A general demurrer to the petition was sustained. It was alleged in the petition: That the parties owned lands adjoining each other, the creek forming the boundary line between them. That the creek was ten miles long, and flowed into the Trinity river, two miles below the land of the parties. That the creek frequently overflows its banks, and inundates portions of the land on both sides of it; that of appellee being easier overflowed than that of appellant. "That the defendant, in violation of plaintiff's right to have the water of said stream pursue its natural course, began the construction of a levee on the north bank of said stream, and continues to build the same. That the defendant has filled in the natural low places of the said stream, and is about to construct a levee on the north bank of said stream along the entire length of the boundary line between plaintiff and defendant. Plaintiff shows to the court that he is cultivating and using his land on the south bank of said stream up to the bank, and that the erection of said dikes on defendant's side of said stream, and the filling in of the low places, drains, and draws in said bank, will cause the stream to unnaturally overflow the lands of plaintiff, to his great damage; that on the ____ day of ____, 1902, defendant began such work, and threatens to continue the same, to plaintiff's great damage; that said injury is irreparable, and cannot be compensated in damages; and that the defendant is not now, and would not be, in the opinion of the plaintiff, at the termination of this suit, the owner of property, real or personal, sufficient to satisfy this plaintiff for the damages he would ultimately sustain from the diversion of the said stream of water from its natural channel aforesaid, and the flooding of his lands, as the defendant is now doing and is about to do."

Under the civil law it appears that all waters, whether surface water or that flowing in water courses, are regulated by the same rule, which is that if they have their course regulated by the contour of the land, by regulation or by title or ancient possession, no change can be made in the course of the water, to the detriment of any one else. The common-law rule on that subject is uncertain, but it has been declared to be the rule of the common law that a person may act as he pleases to get rid of the surface water, and that neither its detention, diversion, nor repulsion is an actionable injury, even though damage may ensue. Jones v. Hannovan, 55 Mo. 462; Bowlsby v. Speer, 31 N. J. Law, 351, 86 Am. Dec. 216. There has been a great diversity of opinion as to the rights and liabilities of parties diverting surface water from their land, but not more so than on the question as to what constitutes surface water. Some courts hold that flood water from a stream is surface water, but the larger number class such water as a part of the stream, and hold that it is not surface water. In the case of O'Connell v. Railway, 13 S. E. 489, 13 L. R. A. 394, 27 Am. St. Rep. 246, the authorities on the question as to what constitutes surface water, and as to the rights of parties to divert waters, whether surface or otherwise, are fully reviewed by the Supreme Court of Georgia. The court said: "If the flood water becomes severed from the main current, or leaves the stream, never to return, and spreads out over the lower ground, it has become surface; but if it forms a...