Bily v. Omni Equities, Inc.

• Decision Date: 23 April 1987
• Docket Number: No. B14-86-779-CV,B14-86-779-CV
• Citation: 731 S.W.2d 606
• Parties: John BILY, Appellant/Appellee, v. OMNI EQUITIES, INC., Don Smith, and W.T. Smith, Appellees/Appellants. (14th Dist.)
• Court: Texas Court of Appeals

Page 606

731 S.W.2d 606

John BILY, Appellant/Appellee, v. OMNI EQUITIES, INC., Don Smith, and W.T. Smith, Appellees/Appellants.

No. B14-86-779-CV.

Court of Appeals of Texas Houston (14th Dist.).

April 23, 1987.

Rehearing Denied May 21, 1987.

Patricia Hair, Houston, for appellant/appellee.

Jeffrey A. Lehmann, Houston, for appellees/appellants.

Before PAUL PRESSLER, MURPHY and ELLIS, JJ.

OPINION

ELLIS, Justice.

John Bily sued Don Smith, W.T. Smith, and the Smiths' land development corporation, Omni Equities, Inc., for injunctive relief and damages alleging that the defendants had impounded the natural flow of surface waters from Bily's property in contravention of common law and section 11.086 of the Texas Water Code. A jury found in favor of Bily and awarded actual and punitive damages. The trial court entered judgment that Bily recover actual damages, but disallowed recovery of punitive damages. Bily appeals the court's denial of punitive damages and Omni and the Smiths appeal the award of actual damages. We sustain Bily's point of error and overrule the cross-points brought by Omni Equities, Inc., and the Smiths.

The properties involved are located in the City of Jersey Village between Jersey Lake on the north and White Oak Bayou on the south. Jersey Lake is a manmade reservoir with a six-to eight-foot-high dam on its south shore. Bily bought his lot in 1977 or 1978 and built his home in 1978. The lot is heavily wooded and extra large, more than ten times the size of a standard residential lot. According to the testimony of a person who had moved onto the land in 1938, when it was a dairy farm, the natural drainage of the Bily property was from the front to the rear, across the land now owned by Omni Equities, Inc. (the Omni property) and into White Oak Bayou. When Bily built his home, the Omni property, which lies between the lake dam and the bayou, was platted as reserve acreage because the strip was too narrow to be developed.

Omni Equities, Inc., is a corporation engaged in land development. Don Smith is its president. W.T. Smith owns 95 percent of the corporation's stock and oversees the construction of improvements and marketing of lots. Don Smith first acquired the reserve acreage in 1977. He sold it to Omni Equities in 1984. In 1984 and 1985 replatting plans were drawn and approved and the streets, utilities, storm sewers, etc., were completed. Sometime in the late summer or fall of 1985 Bily and his neighbor advised Omni through one or both of the Smith brothers that the fill dirt placed on the Omni property was causing water to back up into their backyards. Omni's contractors had placed up to 18 inches of fill along the property line with Bily so that there would be a 1 percent grade from the back of the Omni lot to the front street. City of Jersey Village ordinances require a 1 percent grade from back to front unless the lot is along the bayou. Bily's property was graded so that the front yard drains into the street, but the backyard was left ungraded and surface waters followed their natural course.

In August 1985 Bily's attorney demanded in writing that Omni alleviate the drainage problem, but under the advice of their attorney, Omni and the Smiths refused to do anything to solve the problem. Bily filed suit and obtained a temporary injunction in early 1986 ordering Omni to dig a ditch at the rear of the lot abutting Bily's lot so that Bily's property would drain. After the temporary injunction, W.T. Smith filed some 20 criminal complaints asking the city to fine Bily $200 a day for violating the city ordinance that requires lots to drain from back to front. The city took no action on the complaints.

Throughout the controversy and on appeal Omni and the Smiths have contended that the city ordinances on drainage and grade of lots override any obligation arising out of the water code and common law. Under 46 cross-points of error they argue that their compliance with city codes provides a complete defense to Bily's actions for damages and that Bily's alleged violation of the ordinances makes him negligent per se and precludes him from recovering damages. After a careful analysis of the law, we have concluded that all of the cross-points are without merit. We have also concluded that Bily is entitled to an award of punitive damages as found by the jury.

Section 11.086 of the current water code provides in part:

(a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.

(b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow.

Tex.Water Code Ann. § 11.086 (Vernon Supp.1987).

The earliest statutory predecessor to section 11.086 was enacted in 1915. That statute was omitted from the codification in 1925, but was reenacted in 1927. See Kraft v. Langford, 565 S.W.2d 223, 228 (Tex.1978); Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 407 (1932). The statute adopted the civil law rule of "natural easements." Kraft v. Langford, 565 S.W.2d at 229. Under that rule a higher landowner could not burden adjacent lands with surface water he accumulated or discharged except in the same manner in which it would naturally flow; and the lower estate was obliged to receive the surface waters as they naturally flowed. Id. at 228.

We quote the following passages to emphasize the fundamental nature of the right Bily sought to enforce in his lawsuit.

These rights of the owners of estates under the civil law are appurtenant to and a part of the land itself, and passed to them with the grants. The right of the owner of the upper estate to have the surface waters falling thereon to pass in their natural condition on to the lands of the lower estate is a servitude or natural right in the nature of an easement over the lower estate of his neighbor. It is a right of property, which inheres in the estate entitled to its benefit independent of any contractual or prescriptive right. The right comes clearly within the accepted definitions of and has every essential quality of an easement, although, as stated before, it arises out of nature itself, and, as we have seen, was adopted and enforced by the doctrines of the civil law. The right, being an easement, is a part of the realty itself, an interest in land, and is governed by the rules of law with reference to real property. The right, being a natural easement, arising out of the relationship of the dominant and servient estates, and being a part of the grants made by the sovereign to the owners of the estates, it is a vested right, protected by the Constitution.

Miller v. Letzerich, 49 S.W.2d at 408 (citations omitted).

The record does not show whether Bily can trace his title to a grant from Spain or Mexico. Even if he can not, he enjoys the same property rights under the statute (now section 11.086). Kraft v. Langford, 565 S.W.2d at 229.

Although the parties have not mentioned the point, we note that the statutory action based upon section 11.086 can only be brought against the owner of the coterminous estate, in this case, Omni Equities, Inc. However, the statutory remedy is not exclusive. Bily has also stated a common law cause of action against Don Smith and W.K. Smith as third parties who caused the impoundment. Kraft v. Langford, 565 S.W.2d at 229; City of Houston v. Renault, Inc., 431 S.W.2d 322, 325 (Tex.1968); Muzquiz v. R.M. Mayfield & Co., 590 S.W.2d 742 (Tex.Civ.App.--Houston [14th Dist.] 1979, writ ref'd n.r.e.). We analyze the defendants' various arguments first as they relate to the statutory cause of action against Omni Equities, Inc., and then as they relate to the common law action against the Smiths.

The linchpin of Omni's defense to Bily's claims is that the city ordinances requiring grading from back to front overrule any water code provision because article 1016 of the Revised Statutes provides, in part, that "Any city or town ... shall have the exclusive control and power ... to open, alter, widen, extend, establish, regulate, grade, clean and otherwise improve said streets; to put drains or sewers therein ...; and to regulate and alter the grade of premises; to require the filling up and raising of same...." Tex.Rev.Civ.Stat.Ann. art. 1016 (Vernon Supp.1987). Omni argues that to uphold Bily's judgment against it would be to impair the right of a city to pass grading ordinances that require drainage other than the "natural flow" of surface waters. We do not agree. The record shows that appellant could have complied with both the water code and city ordinances either by designing its street differently, by installing a drain at the rear of Bily's property that connected into its own storm sewer system, or by cutting swales. This is not a case where city ordinances necessarily conflict with state law. Omni cannot choose to ignore the water code provisions with impunity.

Omni also argues that Bily's alleged negligence per se amounts to a defense to any statutory cause of action. As discussed below, we are not convinced that Bily's actions amounted to negligence per se. But even if they did, Omni provides no explanation as to why Bily's negligence would bar him from his statutory cause of action. In Blocher v. McArthur, 303 S.W.2d 529 (Tex.Civ.App.--Austin 1957, writ ref'd n.r.e.), the defendant landowner raised the level of his lot, causing rain water to concentrate on the five feet of property between his neighbor's basement apartment and his property line and to overflow through a window into the apartment. On the complaint of the plaintiff and at his suggestion, a retaining wall high enough to prevent the overflow was constructed, which caused the water held behind the wall to seep through the ground into...