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

• Decision Date: 14 November 1906
• Citation: 97 S.W. 686
• Parties: BIGHAM BROS. v. PORT ARTHUR CANAL & DOCK CO.
• Court: Texas Supreme Court

97 S.W. 686

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

Supreme Court of Texas.

November 14, 1906.

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

Action by Bigham Bros. against the Port Arthur Canal & Dock Company. Judgment for defendant, affirmed by the Court of Civil Appeals (91 S. W. 848), and plaintiffs bring error. Reversed and remanded.

Duff & Duff, D. W. Glasscock, O'Brien, John & O'Brien, Hampson Gary, and Smith Crawford & Sonfield, for plaintiff in error. Greers, Nall & Neblett and S. W. Moore, for defendant in error.

BROWN, J.

We adopt the following statement of the contents of the petition made by the Court of Civil Appeals in its opinion: "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 Nechez 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 of $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, and 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 Co.'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 the 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 Nechez 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 twenty miles from its mouth; that plaintiff's land is situated twenty miles from its mouth. In order to avoid the necessity of a more minute description, we here insert 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 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."

These extracts contain the parts of the Revised Statutes material to a decision of the questions involved in this case:

"Art. 721. This title shall embrace and include the creation of private corporations for the purpose of constructing, owning and operating deep water channels from the waters of the Gulf of Mexico along and across any of the bays on the coast of this state to the mainland, for the purposes of navigation and transportation, and for the construction, owning and operating docks on the coast of this state for the protection and accommodation of ships, boats, and all kinds of vessels for navigation, and their cargoes."

"Art. 722. Every such channel corporation shall, in addition to the powers herein conferred, have power: * * * (3) To construct its channel across, along, through, or upon any of the waters of the bays within the jurisdiction of this state, and so far into the mainland as may be necessary to reach a place for its docks that will...