Bass v. Taylor
| Decision Date | 05 February 1936 |
| Docket Number | No. 6314.,6314. |
| Parties | BASS et al. v. TAYLOR et al. |
| Court | Texas Supreme Court |
L. J. Truett, of McKinney, for plaintiffs in error.
John Doyle and A. M. Wolford, both of McKinney, for defendants in error.
The Court of Civil Appeals in its opinion, affirming the judgment of the trial court , has made a statement of this case sufficient for the purposes of this opinion, and we shall not attempt a complete statement of the facts and issues. We do append hereto, however, a reproduction of a portion of the map which accompanies the record. The map is entirely too large for us to reproduce as a whole, but that part which we do attach is sufficient for a proper conception of the facts which gave rise to the legal questions here involved.
The locus of the controversy is in the valley of Wilson creek, in Collin county. It lies between Wilson creek and the East Fork of the Trinity river, but a short distance above their junction. Both streams rise several miles to the north or northwest, with a broad divide or interfluve between their valleys, but, as the streams flow toward their junction point, the valleys approach until on reaching the place of controversy here their interfluve has in effect disappeared, leaving only a narrow divide, broken at intervals by gaps, opened up by the corrasive effect of the flood waters of the streams through which the overflow waters of Wilson creek leave their own valley and pass into that of the Trinity. The plaintiffs in error were constructing a levee, or levees, connecting up the remnants of this broken divide, for the purpose of confining the overflow waters of Wilson creek to its own valley, and preventing them from passing into the valley of the Trinity and onto their land, when this suit was filed. Wilson creek is indicated by the black lines shown on the map, between which we ourselves have written the words "Wilson Creek." On the southern bank of this stream levees are indicated by rather broad white lines between black hachure marks. Similar levees are also shown on the northern side of the creek, as will be observed on the map. Road embankments are designated and shown in broad white lines. On the northern side of the stream, and some distance from it, will be seen white lines, which, as shown on the map, indicate hills or high ground. The levees to which we have previously referred are marked on the map "Levee," and will be readily observable. Running from a point at or near blocks marked "Barn" and "House" on the northern side of Wilson creek, immediately adjacent to a slough, and running in a southeasterly direction, is a small white line, marked "Proposed Levee." Just where this proposed levee terminates we are not able to state from the record before us, nor is it necessary to do so for the purposes of this opinion, although the evidence shows it to be about 1,600 feet in length. It will be seen that this proposed levee extends from the square marked "Barn" across an old slough to a hill, inclosed by white lines and marked "Hill Line," and from which there runs a levee to the north bank of Wilson creek. None of the constructions marked "Levees" were made by the plaintiffs in error. Some of the levees at least were made by the defendants in error, or their predecessors in title. It is obvious from an examination of the map that the defendants in error, or their predecessors in title, had protected their lands lying south and north of Wilson creek from the overflow waters of the creek. It is plain, also, that the effect of the levee running from the hill (indicated by the words "Hill Line") in a westerly direction, previously mentioned, had the effect of protecting the Wallis and other lands southeast of it, and concentrating the flood waters of Wilson creek, which came out of that stream from its north side, and forcing these waters through the gap between the hill on which the barn and house are located and the hill immediately southeast thereof, and observable from the small white line to which we have referred as being drawn to represent a part of the proposed levee of the plaintiffs in error. That the system of levees constructed by the defendants in error, or their predecessors in title, and the "levee" running from the hill line just above referred to, had the necessary effect of throwing a large volume of water onto the lands of plaintiffs in error, which would not have passed over same but for the construction of the levees, there can be no doubt. In fact, in response to special issue No. 3, which is copied in the opinion of the Court of Civil Appeals , the jury found that the plaintiffs (defendants in error), or some of them, had constructed upon their respective premises levees which in flood time divert the flood waters from Wilson creek and cause the same to flow upon the lands of plaintiffs in error in greater volume than would have flowed upon same if said levee, or levees, had not been built.
The plaintiffs in error propose to construct their levee from the points indicated on the map, and which are represented by a white line marked "Proposed Levee," in such manner as to stop all of the overflow waters from Wilson creek from flowing upon their lands. As shown by the opinion of the Court of Civil Appeals, the trial court enjoined them from making this construction; and this judgment was in all things affirmed by the Court of Civil Appeals. The judgment of the trial court, however, went too far, and enjoined the plaintiffs in error from building any levee to protect themselves from the overflow waters of Wilson creek. The judgment in this respect reads as follows: "It is therefore ordered, adjudged and decreed by the Court that the temporary injunction heretofore issued in this cause on to wit: the 29th day of July 1930, be and the same is hereby perpetuated and made permanent and the defendant Levi Bass and J. L. Bass, and each of them, is perpetually prohibited and enjoined from erecting or causing to be erected any dam, barrier, or levee which will obstruct the natural flow of the flood waters of Wilson Creek or from the flood lands of Wilson Creek onto or across the lands and premises of said defendants and each of them through the natural slough or depression between the high elevation at or near the north boundary line of the land of plaintiff S. G. Taylor and the high elevation northwest of said first named elevation and on the Wallis land near the residence now occupied by Less Hardin or from in any way obstructing the natural flow of the said flood waters or overflow waters of Wilson Creek from passing through said slough and depression between said elevations, and that said defendants Levi Bass and J. L. Bass remove the part of said levee constructed by them across said low lands and depressions between said above named elevations and restore said lands and premises to their...
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