Abilene Light & Water Co. v. Clack

• Decision Date: 04 December 1909
• Citation: 124 S.W. 201
• Parties: ABILENE LIGHT & WATER CO. v. CLACK.
• Court: Texas Court of Appeals

124 S.W. 201

ABILENE LIGHT & WATER CO. v. CLACK.

Court of Civil Appeals of Texas.

December 4, 1909.

Appeal from Taylor County Court; T. A. Bledsoe, Judge.

Action by M. M. Clack against the Abilene Light & Water Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.

Wagstaff & Davidson, for appellant. Cunningham & Oliver, for appellee.

SPEER, J.

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 10 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 cannot 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 1889 and 1890 the Lytle Water Company raised the dam about 32 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 10 or 12 acres of appellee's land. The Lytle Water Company paid him $100 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...