Bigham Bros. v. Port Arthur Canal & Dock Co.

• Decision Date: 15 December 1905
• Citation: 91 S.W. 848
• Parties: BIGHAM BROS. v. PORT ARTHUR CANAL & DOCK CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

91 S.W. 848

BIGHAM BROS. v. PORT ARTHUR CANAL & DOCK CO.^*

Court of Civil Appeals of Texas.

December 15, 1905.

Appeal from District Court, Jefferson County; A. T. Watts, Judge.

Action by Bigham Bros. against the Port Arthur Canal & Dock Company. From a judgment sustaining a demurrer to the petition, plaintiffs appeal. Affirmed.

Rehearing denied.

Duff, Duff & Glasscock, O'Brien, John & O'Brien, and Smith, Crawford & Sonfield, for appellants. S. W. Moore and Greers, Nall & Neblett, for appellee.

GILL, C. J.

This is a suit by Bigham Bros., a partnership, to recover of the Port Arthur Canal & Dock Company, a Texas corporation, damages for the loss of their rice crop in 1902, with a prayer for injunction to prevent the further maintenance of the conditions which occasioned the loss. The trial court sustained a general demurrer to the petition and the plaintiffs, refusing to amend, have appealed.

As the questions presented arise on demurrer it will be necessary to state at some length the facts alleged in the petition, but it is not believed to be necessary to the purposes of this opinion that the pleading be set out in full. It was alleged in substance that in 1902 the plaintiffs were the owners of certain lands fronting on Taylor's Bayou in Jefferson county, Tex.; that the bayou is a fresh water navigable stream wholly within the state emptying into Sabine Lake which though directly connected with the Gulf of Mexico is generally fresh by reason of the flow of the Neches and Sabine rivers in and through it; that this land is especially suited to the growing of rice and is of small value for any other purpose; that a rice crop cannot be successfully raised except by irrigation, and at certain stages of its growth, it requires a large quantity of fresh water; that they planted a rice crop in 1902 and proceeded to irrigate it from Taylor's Bayou, their only water supply, but that the water of the bayou which had theretofore been fresh and sweet had been polluted by the acts of defendant, as hereinafter set out, so that their rice crop withered and died, to their damage $20,000. The water was lifted from the stream to the rice lands by means of pumps and did not flow upon the lands otherwise. The pollution of the water is alleged to have occurred in the following manner: It is averred that the defendant is a corporation duly incorporated under articles 721, 722, 723, 725, of the Revised Statutes of 1895 of this State; that on the 7th of January, 1902, it purchased from its predecessor the canal known as the Port Arthur Canal & Dock Company's canal; that this canal was in 1899 dug from a point on Sabine Pass, along the west margin of the pass and Sabine Lake through the main land to Taylor's Bayou intersecting the bayou at a point about 2,000 feet west of its mouth; that this canal is a narrow channel having a depth of from 20 to 30 feet; that Sabine Lake is an arm or inlet of the sea, being connected with the Gulf of Mexico by Sabine Pass; that Sabine Lake is shallow and generally fresh by reason of the inflow of the Neches and Sabine rivers and before the construction of the canal the incoming tide instead of rendering the lake and bayou salt would merely raise the level of the fresh water in the lake and cause it to flow up Taylor's Bayou; that by reason of the construction of the canal the salt water of the sea is at times carried by the tides directly into the bayou, rendering it salty and unfit for irrigation purposes for over 20 miles from its mouth; that plaintiffs' land is situated 20 miles from its mouth. In order to avoid the necessity of a more minute description we here append a map taken from the appellee's brief, which seems to be a fair representation of the situation as alleged in the petition.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The plaintiffs, asserting the right to irrigate from the bayou and denying the right of defendants to pollute the waters of the bayou for any reason, insist that defendant is liable to them for the damage alleged. They further claim that the canal as it is now is negligently constructed and maintained in this; that at a comparatively small cost, to wit, $6,000 to $12,000, the canal company could construct and maintain a lock and dam in its canal, which, when opened for the purpose, would allow the ingress and egress of shipping, and when closed, would prevent the inflow of salt water, and thus the stream would remain fresh. For this reason and because the recurring pollution of the water will vastly reduce the value of their lands and practically destroy them for the purpose of rice farming, they ask for a mandatory injunction requiring defendant to put in such a lock and dam as will put an end to the pollution complained of. Nothing was asked in the way of damages except the value of the crop lost in 1902. The suit was filed September 2, 1903. The canal is alleged to have been constructed in 1899 and it is further averred that it was at all times apparent that the construction and maintenance of the canal would at times, and under varying natural conditions, cause the pollution of the water of the bayou.

It may be stated generally that the pleader based the right of recovery upon two grounds: First. That plaintiffs' property, to wit, the right to use the water of the bayou, as it was in its natural state, had been destroyed without due compensation and their crop destroyed as a proximate result of the lawful construction of the canal. Second. That, if the right to construct and maintain the canal be conceded, the defendants are nevertheless liable because of their negligent failure to construct the lock and dam as demanded.

The defendant interposed a general demurrer in its usual form and several demurrers special in form but general in substance in that they were addressed to particular features of the petition and which if sustained would render it bad in its entirety. In this sense they were, infact, general demurrers. The court sustained the general and all the special demurrers. Appellee insists the first assignment of error undertaking to assail the action of the trial court in sustaining the general demurrer is too general and ought not to be considered. We are inclined to think the objection to the assignment is meritorious, but, in our opinion, the questions are properly presented under other assignments addressed to the action of the court on the so-called special demurrers referred to above. The objection to the first assignment therefore becomes immaterial, and we may take up and dispose of the questions made without treating the assignments separately.

Appellee contends that its general demurrer was properly sustained because it is disclosed by the allegations that it is a corporation formed for the improvement of navigable waters within the state; that the work complained of was done in the lawful pursuance of that design; that in the construction and maintenance of these improvements it was, in a sense, an agent of the state in that it was exercising a power which the state had delegated to it, and because the state would not have been liable for the injuries complained of had the work been directly done by the state, the defendant is likewise immune. Counsel for appellee, conceding that the right of a riparian owner in the waters and natural flow of a navigable stream is property, thus state their position upon the latter point: "The waters and beds of all navigable streams up to high-water mark are public highways which belong to the state and did so belong to the state before any of the lands abutting thereon were ever granted; that when such lands were granted there was a reservation of the title to the streams and the beds thereof and the incident right to improve these streams for the purpose of navigation in any way the state saw fit; that the grantees of such lands took the title thereto and thereby the riparian right inherent therein subject to this reservation. From which it follows: That the improving of a stream for the purpose of navigation for public convenience does not take, damage, or destroy any property right of the riparian owner although it may render his riparian use comparatively valueless; that this result follows from the reservation and that the act of improving the stream takes nothing away from the riparian owner because as against the government he never had any right which he could assert against the power to make improvements unless his land was actually taken." To this appellants (denying its soundness and contending that the state itself would not have been immune from their claim) interpose the proposition that the state's supposed immunity cannot protect the defendants, because not only is the defendant in no sense an agent of the state, but even if it could be so held in the sense in which such agency is asserted, it is yet true the state may have either granted or withheld that immunity and that it did not pass to defendant under the terms of the act under which defendant was incorporated. Because the question of the immunity of the state becomes immaterial unless it can be asserted by the appellee in defense of this action, we will first determine the latter question.

The articles under which defendant was incorporated empower concerns incorporated thereunder to make surveys for the route of the proposed canal; to construct its channel across, along, through, or upon any of the waters of the Gulf within the jurisdiction of the state and so far into the mainland as may be necessary to reach a safe place for its docks and afford security from storms. To furnish to vessels and boats facilities for navigating the entire channel and to charge and collect tolls therefor. To extend and operate its channel so far into the Gulf of Mexico as may be necessary to obtain an adequate depth of water at its Gulf entrance, to facilitate the ingress and egress of vessels desiring to use the...