Armendaiz v. Stillman

• Decision Date: 01 March 1887
• Citation: 3 S.W. 678
• Parties: ARMENDAIZ <I>v.</I> STILLMAN and others.
• Court: Texas Supreme Court

3 S.W. 678

ARMENDAIZv.

STILLMAN and others.

Supreme Court of Texas.

March 1, 1887.

Appeal from district court, Cameron county.

Waul & Walker, for appellant. Wells & Hicks, (Jas. R. Cox, of counsel,) for appellees.

STAYTON, J.

This action was brought to the February term of the district court for Cameron county, by the appellant, to recover damages claimed to have resulted to him from the destruction of property owned by him on the Mexican side of the Rio Grande. The plaintiff alleged that he was the owner of improved real property opposite the city of Brownsville, and that in the year 1878 the defendants placed a jetty in the Rio Grande, which so changed the current of that river as to cause it to flow against his property, which it had not theretofore done, whereby his property was destroyed. The cause was tried without a jury, and the conclusions of fact and law found were as follows:

"(1) The defendants, in the spring of 1878, constructed the work in question, called `The Field's Jetty,' and the same was constructed on their own land, and solely with the object and purpose of protecting the city of Brownsville from threatened and imminent danger from the effect of the eddy, which cut away and destroyed the Brownsville or Texas bank or shore during high water in the river, and that said work accomplished said object, and protected the front of said city of Brownsville.

"(2) That, at the time of the erection of said Field's jetty, the defendants did not intend injury or damage to the opposite or Mexican bank of the river, or the property of plaintiff, but only to protect the front of the city of Brownsville, and that, with ordinary prudence and foresight and judgment, defendant could not foresee that said Field's jetty was at all likely to produce, occasion, or cause any damage, washing away, or loss to plaintiff's property on the opposite side of the river, or to apprehend, any probability of any such damage.

"(3) I further find, as a matter of fact, that the said works of defendants, being the said Field's jetty, did not cause, occasion, or produce the said loss or damage to plaintiff's property, or to any portion of the same, but that the said loss and damage were produced and caused by other agencies.

"(4) I further find, as a matter of fact, that the plaintiff has sustained damage to the amount substantially as claimed in his pleadings, and that he was the owner of the property so damaged and destroyed.

"As a conclusion of law I find that the defendants were in law justified in erecting the works complained of in the manner and form, and under the circumstances, and for the purpose of its erection, as shown by the evidence in this case; and that, if the damage complained of by plaintiff had resulted therefrom, (which it did not,) it would have been damnum sine injuria, and the defendants not responsible therefor in this action.

                                   "J. C. RUSSELL, Judge Twenty-fifth Judicial District."
                

The injury to the plaintiff's property occurred mostly in the year 1878.

There was much and conflicting evidence as to whether the jetty placed in the river by the defendants caused the destruction of the plaintiff's property; and it is here claimed that the evidence so heavily preponderates in favor of the affirmative of that proposition that upon this ground the judgment should be reversed. In view of other questions in the case, it will not be necessary to examine and decide that question, or to express any opinion upon it.

The cause was not tried until the February term, 1884, and in the month preceding an engineer made a survey and map of the river, showing its depth, breadth, and general outlines for some distance above and below the place of the injury, and at that place. This survey was made when the water was low; and when the map was offered in evidence, in connection with the testimony of the person who made it, explanatory of it, both were objected to on the grounds that the evidence was irrelevant; that it had been shown that the river often suddenly changed its course; and for the reason that the evidence did not show the depth, breadth, and course of the river at high water, at the time the injury complained of occurred. The objections to the evidence were overruled, and we think correctly. It was relevant to the issue to be tried, and served at least to give ...