Bildon Farms, Inc. v. Ward County Water Imp. Dist. No. 2

• Decision Date: 31 May 1967
• Docket Number: No. A--11371,A--11371
• Citation: 415 S.W.2d 890
• Parties: BILDON FARMS, INC., Petitioner, v. WARD COUNTY WATER IMPROVEMENT DIST. NO. 2, Respondent.
• Court: Texas Supreme Court

Page 890

415 S.W.2d 890

BILDON FARMS, INC., Petitioner, v. WARD COUNTY WATER IMPROVEMENT DIST. NO. 2, Respondent.

No. A--11371.

Supreme Court of Texas.

May 31, 1967.

Rehearing Denied June 28, 1967.

A. R. Archer, Jr., Monahans, Garland Casebier, Midland, for petitioner.

Johnson & Dionne, Hart Johnson, Fort Stockton, L. Holt Magee, Monahans, for respondent.

SMITH, Justice.

Bildon Farms, Inc., brought this suit against Ward County Water Improvement District No. 2 for damages allegedly caused by the District's breach of its contract to furnish water from Red Bluff Reservoir for irrigation purposes. The case was tried to a jury. The jury in answer to a special issue ¹ found that the District delivered to Bildon Farms water of a higher saline quality than contemplated under the terms of the contract and that such water originated from sources other than Red Bluff Reservoir. ² The jury also found in answer to Special Issues 2 and 3 that such delivery was negligence and a proximate cause of damages to Bildon Farms' growing crops. In answer to other issues, ³ the jury found that Bildon Farms suffered damages in the sum of $23,349.88, but that 30% Of such damages to its growing crops was proximately caused by Bildon Farms' poor husbandry. The jury also found that Bildon Farms failed to farm the premises in keeping with good husbandry. ⁴

The trial court accepted the verdict. Both parties filed motions for judgment. Bildon Farms' motion for judgment was based on the verdict. It made no request to the court to disregard the finding of the jury that 30% Of the damages was caused by its poor husbandry.

The Water District filed a motion for judgment on the verdict. This motion was based on the finding of the jury that 30% Of the total damages found by the jury was caused by Bildon Farms' poor husbandry. The Water District's position being that the finding amounted in law to a finding of contributory negligence and as a consequence thereof the only proper judgment to be entered was one that Bildon Farms take nothing by its suit. The Water District also filed a motion for judgment non obstante veredicto. This motion will be discussed later in this opinion. The trial court granted Bildon Farms' motion for judgment and overruled the motions for judgment filed by the Water District. Judgment was entered for $16,344.81, which was 70% Of the damages suffered. On appeal, the Court of Civil Appeals sustained the Water District's contention that it was entitled to judgment that Bildon Farms take nothing on the ground that the finding of the jury in answer to Special Issue No. 7 was a finding of contributory negligence which precluded Bildon Farms from a recovery of damages. Based on this holding, the intermediate court reversed the judgment of the trial court and rendered judgment that Bildon Farms take nothing by its suit. The intermediate court did not pass upon the points before it complaining of the action of the trial court in failing to grant the Water District's motion for judgment non obstante veredicto. Tex.Civ.App., 399 S.W.2d 373.

Bildon Farms has appealed from this adverse take nothing judgment and confines its points in this Court to the alleged error of the Court of Civil Appeals in rendering judgment in favor of Water District on the grounds that Bildon Farms was guilty of contributory negligence. We have concluded that the judgment of the Court of Civil Appeals based upon its holding that Bildon Farms was guilty of contributory negligence cannot be upheld, but will first dispose of the Water District's points presented in the Court of Civil Appeals which would, if sustained, require an affirmance of the judgment of that court.

In order to better understand our decision, we deem it necessary to state in some detail, the status and relationship of the parties, the terms of the contract between the parties, the pleadings, and the evidence bearing upon the basic issue to be decided in this case.

Ward County Improvement District

The Respondent, Ward County Water Improvement District No. 2, hereinafter referred to as the Water District, was established pursuant to the provisions of Chapter 86 of the General Laws of the Thirty-Fifth Legislature (1917), as amended (Acts 1919, 36th Leg., 2d C.S., p. 65, ch. 28), and these legislative enactments are now found in Article 7622 ⁵ et seq. In 1934 the Water District and six other water districts similarly situated along the Pecos River entered into a contract designated as the Master Contract, creating Red Bluff Water Power Control District and assigning to said master district all of the District's water rights in the Pecos River. The Red Bluff District was designated as a master district including within its boundaries the seven other subdistricts. Under the terms of the Master Contract, the Red Bluff District agreed to construct a reservoir on the Pecos River approximately ten miles south of the Texas-New Mexico line and to operate said reservoir so as to store the water of the Pecos River belonging to the subdistricts. When notified of the need for the water, Red. Bluff would distribute the requested water to the subdistricts by conveying such water down the Pecos River to the headgate of the requesting subdistrict. After the water entered the system of the requesting subdistrict, it was responsible for getting the necessary irrigating water to the farmers of its district. Red Bluff District was originally a party defendant in this suit, but was dismissed therefrom and is not involved in this appeal.

Bildon Farms

During 1961, the time material to this suit, Bildon Farms was the lessee of a 600-acre tract of land situated within the confines of the District upon which petitioner desired to plant and harvest a crop of milo maize. Because it is necessary to irrigate in order to produce crops in this arid section of the State, Mr. Joe Boswell, president and stockholder of Bildon Farms, Inc., contacted the Grandfalls office of the Water District in April, 1961, with regard to the availability of sufficient irrigation water for that year. Boswell testified that he was assured of a plentiful supply of water to be delivered at proper times, but, that notice would be required to the Water District office several days in advance of the need for the water 'because they had to deliver the water from Red Bluff Dam to this District, and then to our farms.' Such notice did not have to be written; only a telephone call or visit to the office was required. Boswell testified that when the contract was being discussed with representatives of the Water District that he and the employees of the Water District were 'talking about' Red Bluff water; and he estimated Bildon Farms would need, during 1961, 1600 acre-feet of water for its 600 acres of milo maize, for which he paid $4,400 in cash in advance, plus a $2,000 credit to the account of petitioner's predecessor on the farm.

Pleadings

Bildon Farms pleaded that it entered into a contract about April 1, 1961, whereby the District agreed to deliver at least 1,640 acre-feet of Red Bluff Reservoir water and at times requested by Bildon Farms; that under the contract the Water District agreed to deliver to Bildon Farms water it was to procure from Red Bluff Reservoir as needed to make a crop. Bildon Farms alleged that the contract was breached in that it delivered water from sources other than Red Bluff Reservoir; and that it failed to respond to the plaintiff's request for water when needed, although 'there was adequate water stored in Red Bluff Reservoir to meet the needs of plaintiff and the other users of water in defendant district.'

Bildon Farms also alleged certain acts of negligence on the part of the Water District. Although the trial court ruled that the negligence theory only was to be submitted to the jury, it is our view that Issue No. 1 and related issues embraced the breach of contract theory as well. We construe the pleadings to allege a claim for damages arising out of a breach of contract for the failure to furnish the Red Bluff Reservoir water contracted for at the times requested and for breach of contract for furnishing water from a source other than Red Bluff Reservoir. Therefore, disposition of the negligence issues is unnecessary to our decision.

Evidence

The Water District presented points in the Court of Civil Appeals attacking the judgment of the trial court on the ground that there was no evidence to show that the Water District delivered inferior water to Bildon Farms and that there was no evidence in the record to establish that the water which was delivered proximately caused damages to Bildon Farms' crops. We have carefully considered the statement of facts consisting of 776 pages of testimony. In the interest of brevity, we shall not attempt to detail the evidence at length, but will summarize the evidence. We have discarded all adverse evidence and have given credit to all evidence favorable to Bildon Farms. In accordance with well settled rules of law, we have viewed the evidence from the standpoint of Bildon Farms, and have concluded that the evidence supports the findings under attack. The evidence showed that Bildon Farms had 600 acres of land under lease for the purpose of growing milo maize; that this land was divided into blocks as shown by a plat of the land which was introduced in evidence. The evidence reflects that some of the blocks were marked 'salt'. This indicated the tracts or blocks which were affected by the salt water or inferior water during the period of time from July 25th or July 28th to August 8th or 10th. Evidence showed that tracts 'T,', 'R' and 'P' were not irrigated during the critical period involved; that in addition to tracts 'T', 'R' and 'P', tracts 'B', 'F' and 'G' and the west half of 'H' consisting of 171 acres were not irrigated with salt water. These tracts produced 685,000 pounds of grain. The remaining 429 acres, which was irrigated during the critical period...