Bennett v. Brown County Water Imp. Dist. No. 1

• Decision Date: 21 July 1954
• Docket Number: No. A-4415,A-4415
• Citation: 272 S.W.2d 498,153 Tex. 599
• Parties: BENNETT et ux. v. BROWN COUNTY WATER IMP. DIST. NO. 1.
• Court: Texas Supreme Court

Page 498

272 S.W.2d 498

153 Tex. 599

BENNETT et ux. v. BROWN COUNTY WATER IMP. DIST. NO. 1.

No. A-4415.

Supreme Court of Texas.

July 21, 1954.

Rehearing Denied Dec. 1, 1954.

Mark Callaway, Brownwood, for petitioners.

J. C. Darroch, Brownwood, for respondent.

GRIFFIN, Justice.

Norman Eugene Bennett, eight year old son of petitioners, was drowned when he fell into an irrigation ditch owned and operated by respondent as a part of the function of storing and distributing flood waters in Brown County, Texas. Petitioners filed suit for damages against respondent alleging that respondent was guilty of negligence in the construction and operation of the irrigation ditch at the place where young Bennett was drowned; that such ditch and the water therein at the place where the regrettable accident occurred constituted an 'attractive nuisance' to one of the tender years of young Bennett; and that the respondent was guilty of maintaining a nuisance at the time and place in question. Respondent filed a motion to dismiss the petition on the ground that the plaintiffs' petition showed respondent at the time and place in question to be a governmental agency engaged in carrying out the public rights and duties imposed upon it by law and for which it was created. The trial court sustained the motion to dismiss and the Bennetts declined to amend, and appealed to the Court of Civil appeals. In the Court of Civil Appeals the judgment of the trial court was affirmed. 261 S.W.2d 754.

Upon the trial the following agreement was made between the parties to this litigation in open court acting through their respective attorneys:

'Brown County Water District owns Lake Brownwood, which is the reservoir for impounding water that the District dispenses to the inhabitants of the District and to the City of Brownwood. This reservoir was created by virtue of issuance of bonds of the District, together with the irrigation canal and the laterals taking off from it; it wholesales to the City of Brownwood and dispenses water to the irrigated lands within the District. On the date of the death of the Bennett child, Brown County Water Improvement District owned and was operating the canal and the syphon at which the death of the child took place; and it is admitted that water was flowing through that irrigation canal at that time, and the water was being flowed through that canal for the purposes for which the District was created. It is further admitted that this canal was constructed in accordance with the plans of-in accordance with the plans and specifications of reputable engineers, and under a contract approved by the Brown County Water Improvement District's board of directors, acting upon the advice and under the direction of such engineers'.

Respondent was created under the provisions of Article XVI, Section 59a of our State Constitution, Vernon's Ann.St., and statutes enacted thereunder by the Legislature to carry into effect such constitutional provision.

Section 59a of Article XVI provides, in part, that the conservation and development of all the natural resources of this state, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams for irrigation and all other useful purposes, the reclamation and irrigation of its arid, semi-arid and other lands needing irrigation, the reclamation and drainage of its overflowed lands, and other land needing drainage, and the preservation and conservation of all such natural resources of the state are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto. Subsection (b) of such Section 59 provides, in part, for the creation of conservation and reclamation districts as may be determined essential to the accomplishment of this (conservation) amendment, 'which districts shall be governmental agencies and bodies politic and corporate with such powers of government and with the authority to exercise such rights, privileges and functions concerning the subject matter of this amendment as may be conferred by law.' Article 7731, Vernon's Annotated Texas Civil Statutes, Ch. 13, Sec. 6, Acts, Reg.Sess., 37th Leg., 1921, with regard to the water improvement districts provides in part, 'All such districts shall be governmental agencies, and body politic and corporate, and be governed by and exercise all the rights, privileges and powers provided by law * * *'.

Petitioners admit that this district is 'a governmental agency and a body politic', but contend that the liability of the district is analogous to that of a city; i. e., it is liable for the negligence of its agents and servants resulting in the exercise of proprietary functions as distinguished from governmental functions. Petitioners further contend that the furnishing of water for irrigation purposes to the inhabitants of the District is a proprietary and not a governmental function. We think this matter has been foreclosed by previous decision of this Court, both by this Court's opinion, and by our 'refusal' of application for writ of error (since 1927) in two cases from the Courts of Civil Appeals.

In the case of Willacy County Water Control and Improvement Dist. No. 1 v. Abendroth, 1944, 142 Tex. 320, 177 S.W.2d 936, 937, Abendroth sought to make the District subject to a writ of garnishment in his favor. The trial court sustained exceptions to the writ upon the grounds that the District was exempt from garnishment by reason of being a body corporate and politic and a political subdivision of the State of Texas. On appeal the Court of Civil Appeals, 175 S.W.2d 90, reversed upon the grounds that the District was a 'body corporate and politic * * *', only in the sense that a city was a 'body corporate and politic', and therefore subject to garnishment under the same rule of law as a city. Cities were held to be subject to garnishment in the absence of a statute exempting them. Since there was no statute exempting water improvement districts, the Court of Civil Appeals held the District to be subject to garnishment. Thus, there was squarely presented to this Court the question of whether or not a water improvement district was a 'body corporate and politic' only as a city. This Court, after discussing Article XVI, Section 59a of our Constitution, an act of the 41st Legislature, 1929, Vernon's Ann.Civ.St. art. 7880-147c, validating such districts and again declaring these districts to be 'valid and existing governmental agencies and bodies politic,' and the necessity for a specific statutory enactment to make counties, school districts, etc., subject to garnishment, said:

'Irrigation districts, navigation districts, levee and improvement districts, and like political subdivisions created under Section 59a of Article XVI of the Constitution, and statutes enacted thereunder carrying out the purposes of such constitutional provision, are not classed with municipal corporations, but are held to be political subdivisions of the State, performing governmental functions, and standing upon the same footing as counties and other political subdivisions established by law. Harris County Flood Control District v. Mann, 135 Tex. 239, 140 S.W.2d 1098; Wharton County Drainage District No. 1 v. Higbee, Tex.Civ.App., 149 S.W. 381, writ refused; Bexar-Medina-Atascosa Counties Water Improvement District No. 1 v. State, Tex.Civ.App., 21 S.W.2d 747, writ refused; Engleman Land Co. v. Donna Irrigation District No. 1, Tex.Civ.App., 209 S.W. 428, writ refused; Arneson v. Shary, Tex.Civ.App., 32 S.W.2d 907, appeal dismissed, Arneson v. United Irr. Co., 284 U.S. 592, 52 S.Ct. 202, 76 L.Ed. 510; Harris County Drainage District No. 12 v. City of Houston, Tex.Com.App., 35 S.W.2d 118, 120; 44 Tex.Jur., p. 262, § 176.'

This Court gave an unqualified 'refusal' to the opinion of the Court of Civil Appeals in the case of Jones v. Jefferson County Drainage Dist. No. 6, 1940, 139 S.W.2d 861, 862, wherein it was sought to hold the Drainage District liable for injury to plaintiff by virtue of negligence of a District employee. A demurrer was sustained to the plaintiff's petition by the trial court. In affirming the judgment, the Court of Civil Appeals said:

'Drainage districts created under the provisions of Chapter 7 of Title 128, Art. 8097, V.C.S., enacted under authority of Art. 16, Sec. 59a, of the State Constitution, Vernon's Ann.St., are political subdivisions of the state of the same nature and stand upon exactly the same footing as counties, or precincts, or any of the other political subdivisions of the state. Harris County Drainage District No. 12 v. City of Houston, Tex.Com.App., 35 S.W.2d 118; Wharton County Drainage District No. 1 v. Higbee, Tex.Civ.App., 149 S.W. 381; American Surety Co. (of New York) v. Hidalgo County, Tex.Civ.App., 283 S.W. 267, writ of error refused; Parker v. Harris County Drainage District, Tex.Civ.App., 148 S.W. 351; Harris County v. Gerhart, 115 Tex. 449, 283 S.W. 139; Nussbaum v. Bell County, 97 Tex. 86, 76 S.W. 430; Braun v. Trustees of Victoria Independent School District, Tex.Civ.App., 114 S.W.2d 947; 15 Tex.Jur. 722.

'In the Gerhart Case, supra, our Supreme Court held (115 Tex. 449, 283 S.W. 140): 'It is well established that at common law counties as a rule are not liable for injuries resulting from the negligence of their officers or agents, and no recovery can be had in damages unless liability be created by statute. Heigel v. Wichita County, 84 Tex. 392, 19 S.W. 562, 31 Am.St.Rep 63; Nussbaum v. Bell County, 97 Tex. 86, 76 S.W. 430.'

'Since drainage districts are of the same nature and stand upon the same footing as counties, and since counties are not liable for injuries resulting from the negligence of their officers or agents, it logically follows that drainage districts, likewise, are not liable for injuries resulting from the negligence of their officers or agents.'

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