Baker v. City of Fort Worth

• Decision Date: 31 March 1948
• Docket Number: No. A-1480.,A-1480.
• Citation: 210 S.W.2d 564
• Parties: BAKER v. CITY OF FORT WORTH.
• Court: Texas Supreme Court

Page 564

210 S.W.2d 564

BAKER v. CITY OF FORT WORTH.

No. A-1480.

Supreme Court of Texas.

March 31, 1948.

Rehearing Denied May 19, 1948.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by W. J. Baker against the City of Forth Worth to recover for damages from the flooding of plaintiff's land as result of the erection of a bridge and its approaches and embankments by the defendant. From a judgment for the plaintiff, the defendant appealed to the Court of Civil Appeals. To review the judgment of the Court of Civil Appeals, 205 S.W.2d 68, reversing the trial court's judgment and rendering judgment for the defendant, the plaintiff brings error.

Judgment of Court of Civil Appeals reversed and trial court's judgment affirmed.

Slay & Slay, W. H. Slay, Jr., and Robert Harrison, all of Fort Worth, for petitioner.

R. E. Rouer, City Atty., and Heard L. Floore and Sam A. Woodward, Asst. City Attys., all of Fort Worth, for respondent.

FOLLEY, Justice.

This suit was filed by the petitioner, W. J. Baker, on September 9, 1946, against the respondent, City of Fort Worth, for flood damages to his land and personal property suffered in March 1945 as a result of the City's erecting a bridge, its approaches and embankments, across the Clear Fork of the Trinity River in 1937. The improvement was alleged to have obstructed and diverted the natural flow of the water in the flood channel of the river so as to overflow about 10 acres of petitioner's land therein situated and upon which he owned and operated a nursery and retail floral business. It was further alleged that by reason of the diversion of the flood waters the petitioner suffered damages to his flowers, nursery stock, office records, assorted merchandise, and miscellaneous equipment, in the sum of $17,874.60, and damages to his land in the sum of $12,500.

As a defense the city alleged that all or a substantial part of the damages inflicted were due to the joint action of the overflow waters and waste oil coming from the property of the Texas & Pacific Railway Company and the International-Great Northern Railroad Company. For that damage it was asserted that petitioner had executed a full and complete release to the railroad companies, receiving therefor the sum of $11,000, which action, the city claimed, relieved it of any further liability. It also alleged that the bridge was a permanent structure; that the damages, if any, were permanent and continuing from the time the bridge was built; and that the action was barred by limitations of two and four years. Arts. 5526 and 5529, Vernon's Ann.Civ.St.

The trial court overruled the defensive pleas of the city and submitted special issues to a jury, which found that petitioner had suffered damages to his personal property in the sum of $11,137.50 by reason of the flood waters on the occasion in question. It also found damages to the land in the sum of $3000, but further found that the land had been benefitted in the sum of $3000 by the opening of the street and the construction of the bridge. The trial court thereupon offset the benefits to the land against the damages, and rendered judgment for petitioner in the sum of $11,137.50, representing damages to the personal property only.

The Court of Civil Appeals sustained the limitation pleas, reversed the judgment of the trial court, and rendered judgment for the city. 205 S.W.2d 68. That court was of the opinion that the injury was permanent and continuing, and that the cause of action therefor arose more than two years before the suit was filed. That view was based in part upon the fact that in April 1942 there was a small flood which overflowed petitioner's premises and inflicted some slight damage to his property. However, the injury then suffered was so negligible that petitioner did not file a claim for reimbursement. Nonetheless, the Court of Civil Appeals held that it was of sufficient intensity to charge petitioner with notice that it would recur with each succeeding flood; that if limitation did not begin to run at the time of the completion of the bridge in 1937, a continuing cause of action at least arose in April 1942; and that, in any event, the present claim was barred by limitation under either the two-year or four-year statute.

We are not in accord with the holding of the Court of Civil Appeals. The erection of the bridge with its approaches was a lawful undertaking. It did not within itself constitute a nuisance. It was not constructed upon petitioner's land, nor did it constitute an invasion of his rights or premises at the time it was built. Though the structure was permanent in character, no immediate injury arose, and the injuries resulting were only in consequence of some intervening cause.

The law governing limitation of such actions as this was announced by this court in the early case of Austin & N. W. Ry. Co. v. Anderson, 79 Tex. 427, 15 S.W. 484, 485, 23 Am.St.Rep. 350, where a landowner sued the railway company for damages for injuries caused by occasional overflows of surface water which had been diverted from its natural channel by the construction of the defendant's road. In almost an exact factual situation as here involved, this court, in sustaining the action of the trial court in overruling the plea of limitation, said:

"The question is, when did the cause of action accrue, — at the time of the erection of the embankment and culverts, or at the date of the injury? Chief Justice Stayton, in the case of [Houston] Water-Works v. Kennedy, 70 Tex. 233, 8 S.W. 36, discusses the question, and gives us a rule. He says: `When the act is in itself lawful as to the person who bases an action on injuries subsequently accruing and consequent upon the act, it is held that the cause of action does not accrue until the injury is sustained. * * * If, however, the act of which the injury was the natural sequence was a legal injury, by which is meant an injury giving cause of action by reason of its being an invasion of plaintiff's right, then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damage resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar.' * * * We conclude from the authorities that, where a nuisance is permanent and continuing, the damages resulting from it should all be estimated in one suit, but where it is not permanent, but depends on accidents and contingencies so that it is of a transient character, successive actions may be brought for injury as it occurs; and that an action for such injury would not be barred by the statute of limitations, unless the full period of the statute had run against the special injury before suit. The building of the...