Ansley v. Tarrant County Water Control and Imp. Dist. No. One

• Decision Date: 28 June 1973
• Docket Number: No. 649,649
• Citation: 498 S.W.2d 469
• Parties: Maude L. ANSLEY et al., Appellants, v. TARRANT COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. ONE, Appellee.
• Court: Texas Court of Appeals

Page 469

498 S.W.2d 469

Maude L. ANSLEY et al., Appellants, v. TARRANT COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO ONE, Appellee.

No. 649.

Court of Civil Appeals of Texas Tyler.

June 28, 1973.

Rehearing Denied July 26, 1973.

Ivan Irwin, Jr., Shank, Irwin, Conant, Williamson & Grevelle, Dallas, for appellants.

William Brown, Brown, Herman, Scott, Dean & Miles, Fort Worth, for appellee.

MOORE, Justice.

Appellants, Maude L. Ansley, Wesco Materials Corporation, and Bruce Smith, instituted this suit against appellee, Tarrant County Water Control and Improvement District No. One, to recover permanent damages to land alleged to have been caused by the repeated flooding thereof by a dam and spillway constructed by appellee. Appellant Maude Ansley is the surface owner of the 820-acre tract alleged to have been damaged. Appellant Wesco Materials Corporation is the owner of certain sand and gravel rights in the tract and appellant Bruce Smith is the lessee of the grazing and hunting rights thereon. Appellee is a political subdivision of the State of Texas created under the provisions of Article 7880 et seq., Vernon's Ann.Texas Statutes.

As grounds for a cause of action appellants alleged that the land alleged to have been damaged by flooding is situated in Henderson County and lies between the Trinity River and Cedar Creek; that in 1966 appellee constructed a dam on Cedar Creek and in connection therewith constructed a long drainage channel and spillway so that the overflow from the reservoir would drain into the Trinity River near appellants' land; and that prior to the construction of the dam and spillway the waters of Cedar Creek flowed into the Trinity River approximately twenty-three miles downstream from appellants' property, but that after the construction of the dam and spillway the overflow of Cedar Creek Reservoir was diverted into the Trinity River at a point in close proximity to appellants' property. Appellants alleged that at the point where the water from Cedar Creek was discharged into the Trinity, the channel of the river was inadequate to accommodate such water in addition to the natural overflow of the Trinity River and as a result appellants' land was subjected to recurring flooding. Appellants alleged that the conduct of the appellee amounts to a taking or damaging of their lands for public use without compensation in violation of Section 17, Article I of the Constitution, Vernon's Ann.St., of this State. Appellants' claim for damages is not based on negligence. Appellee denied generally the allegations of the petition and specially alleged that the Ansley land was situated in the floodplain of the Trinity River and had been historically subject to floods from the Trinity River prior to the time of the construction of Cedar Creek dam and spillway; that historically such floods had occurred at least once a year and frequently more often and that the construction of the dam and spillway actually caused no damages to the land because the land had always been, and always would be, subject to flooding by the Trinity River; that by reason of this condition appellants, in fact, sustained no damages as a result of the construction and operation of the Cedar Creek dam and spillway. In the alternative, appellee alleged that any damage which may have been caused was temporary, sporadic and recurring in nature and did not constitute permanent damage to said land.

Trial was had before a jury. The cause was submitted to the jury by five special issues. In response to Special Issue No. 1, the jury found that 'the Ansley property or portions thereof has become subjected to repeated increased flooding as a result of the construction, maintenance and operation of the Cedar Creek reservoir, dam, and spillway and discharge channel.' By Special Issue No. 2 the jury was requested to find from a preponderance of the evidence whether 'the market value of the Ansley property has been decreased by reason of the construction, maintenance and operation of the Cedar Creek reservoir, dam, spillway and drainage channel.' The jury answered this issue: 'We do not.' Special Issue No. 3 requested a finding of whether or not the decrease in market value was 'permanent.' The jury did not answer this issue since it was conditionally submitted on an affirmative finding to Special Issue No. 2. In response to Special Issues 4 and 5 the jury found that the market value of the Ansley tract immediately prior to the construction of Cedar Creek reservoir, dam, spillway and discharge channel was $743,155.00 and had the same market value of $743,155.00 immediately after the construction thereof.

Based upon the jury verdict, the trial court rendered a take-nothing judgment against appellants. From such Judgment and Order overruling their Motion for New Trial, appellants perfected this appeal.

Article I, Sec. 17 of the Constitution of the State of Texas provides in part as follows:

'Sec. 17. No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made * * *.'

Since compensation must be paid when property is taken, destroyed or damaged, the distinction between an appropriation and damage without any appropriation is no longer important on the question of liability to pay compensation. McCammon & Lang Lumber Co. v. Trinity & B.V. Ry. Co., 104 Tex. 8, 133 S.W. 247 (1911). It is therefore immaterial with respect to liability for payment of compensation whether the injury to the land is classified as a complete 'taking' or as a 'damaging' of the land. Trinity & S. Ry. Co. v. Schofield, 72 Tex. 496, 10 S.W. 575 (1889); Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (Tex.1961).

The record shows Tarrant County Water Control and Improvement District No. One was created for the purpose of supplying water to the City of Fort Worth. The Reservoir was constructed under a permit issued by the State Board of Water Engineers, authorizing the impounding of 678,900 acre feet of water by the construction of a dam on Cedar Creek approximately 1 9/10 miles northeast of Trinidad, Texas. After construction of the dam and spillway, the reservoir reached its full storage capacity on or about December 22, 1967, impounding water to an elevation of 322 feet above sea level; however, appellee first commenced discharging water in the river in 1966. In connection with the operation of the dam and reservoir, the District constructed a spillway outlet channel approximately 250 wide, approximately two miles in length in a southwesterly direction so as to empty into the Trinity River. The spillway constitutes the only method of discharging floodwaters from the reservoir.

The 820-acre Ansley tract of land is located approximately one mile up-river from the confluence of appellee's spillway and the Trinity River. The land in question does not border on the Trinity but lies about one mile east thereof, being situated between the river and Cedar Creek. It is mostly woodland and contains no improvements except fences. It is without dispute that the land lies within the floodplain of the Trinity River. The elevation of the land for the most part is below that of the river while in banks, so that it has historically been subjected to flooding when the Trinity River overflowed.

By their first four points of error, appellants seek a reversal of the take-nothing judgment rendered against them because they contend the judgment amounts to a taking or damaging of their property for public purposes without compensation in violation of Article 1, Sec. 17 of the Constitution. Appellants argue that since the jury found that the land, or a portion thereof, was subjected to 'repeated increased flooding' by reason of the conduct of appellee, it follows, as a matter of law, that their property was permanently 'injured' or 'damaged.' Therefore, they contend that even though their land had always been subject to flooding, the jury's finding that appellee's improvement caused at least some degree of additional flooding, entitles them to damages, as a matter of law. Consequently, they say that the trial court erred in entering judgment on the verdict and erred in refusing to grant them a new trial.

Since we do not agree with the foregoing proposition or any of the other propositions hereinafter asserted by appellants, we accordingly affirm the judgment of the trial court.

A statement of the evidence will be necessary. Rosswell L. Finlay, a consulting engineer, employed by the firm of Forrest and Cotton, Inc., who was called as an expert witness by appellants, testified that he was employed to determine whether the releases of water from the Cedar Creek Reservoir into the Trinity would cause recurring and increased flooding onto the Ansley land, which would not have otherwise occurred prior to the construction of the same. He testified that in making a study of the situation he assembled the basic flow records of both the Trinity River and Cedar Creek from 1940 to 1965 and established a crest gauge on the Ansley property in order to determine the maximum stage achieved by any one flood; that by the use of historical data accumulated from 1940 to 1965, he prepared hydrographs showing historical flooding of the Ansley property caused by the Trinity and that by the use of the hydrographs and a detailed contour map of the Ansley property he was able to determine the amount of historical flooding caused by the river. He then determined what the flood discharges would have been historically from Cedar Creek had the Cedar Creek Reservoir been in existence from 1940 to 1965 and had the same been at its maximum level of elevation of 322 feet at the time of each flood. He testified that he then placed these computations in a computer and developed a new hydrograph showing the incremental flooding on the Ansley property after appellee's improvements were constructed. According to his interpretation...