Brazos River Authority v. City of Graham, 16082

• Decision Date: 08 April 1960
• Docket Number: No. 16082,16082
• Citation: 335 S.W.2d 247
• Parties: BRAZOS RIVER AUTHORITY, Appellant, v. CITY OF GRAHAM, Appellee.
• Court: Texas Court of Appeals

Page 247

335 S.W.2d 247

BRAZOS RIVER AUTHORITY, Appellant, v. CITY OF GRAHAM, Appellee.

No. 16082.

Court of Civil Appeals of Texas, Fort Worth.

April 8, 1960.

Rehearing Denied May 13, 1960.

Roger Tyler and J. R. Creighton, Mineral Wells, Brown, Herman, Scott & Young, John M. Scott and William M. Brown, Fort Worth, for appellant.

Jennings & Montgomery, and Frank Jennings, Graham, for appellee.

BOYD, Justice.

The City of Graham recovered judgment against Brazos River Authority for $430,750 as damages for the claimed flooding and destruction of its water treatment plant, its sewage disposal plant, and its channel dam and reservoir as a result of the construction, maintenance and operation of Possum Kingdom Dam and Lake, which judgment subjects the tracts of land on which the named facilities are situated to an easement or servitude in favor of Brazos River Authority for future flooding of said facilities. From this judgment Brazos River Authority appeals.

Possum Kingdom Dam was constructed across the Brazos River some 55 miles downstream from the confluence of said River and Salt Creek. The dam was constructed in 1941. Its spillway is at elevation 1000 feet. The sewage disposal plant is on the west side of Salt Creek, about three miles upstream from its mouth. It was constructed in 1923 and was expanded and modernized in 1951. Its critical elevation is 1003.94. The channel dam is across Salt Creek about 1 1/4 miles above to disposal plant. It was built in 1908, and was raised and lengthened in 1923. The top of the dam is at elevation 1009.97. The water treatment plant is on the east side of Salt Creek, some 1,200 feet upstream from the channel dam. It was built in 1908. Its critical elevation is 1019.09.

Appellee alleged, there was evidence to show, and the jury found that the flow in the River and in Salt Creek has been so retarded by the static body of water in Possum Kingdom Lake and in the beds of the river and Salt Creek as to increase the deposit of silt in the lake and in the stream beds and cause the waters to attain increasingly higher elevations in times of flood, as a consequence of which appellee's facilities were many times flooded and their value for the purposes for which they were constructed was destroyed.

Appellee's water supply is from Lake Graham and Lake Eddleman, the former being on Salt Creek above the installations here involved, and the latter being on a tributary of Salt Creek upstream from the water treatment plant. The lakes are connected by a canal, and the water is brought from Lake Eddleman to the treatment plant through a 16-inch pipeline. The water impounded by the channel dam is used in emergencies caused by pipeline breaks, extreme periods of drought, or other catastrophies. Appellee is a growing city, and these facilities have been used to, and sometimes above, normal capacity. There was evidence showing that when backwater from Possum Kingdom Lake goes over the channel dam the water in the channel reservoir becomes unusable because it is contaminated by untreated sewage when the disposal plant is put out of operation because of its being flooded.

The jury found that the intrinsic value of the disposal plant at time of trial would be $140,000 had Possum Kingdom Dam not been constructed, maintained and operated, but now had a value of $750; that the water treatment plant would be worth $250,000 without Possum Kingdom Dam and is now worth only $1,500; and that the channel dam and reservoir would be worth $43,000 without Possum Kingdom Dam and is worth nothing now.

Article 8280-101, Sec. 2, Vernon's Ann.Civ.St., reads as follows:

'The Brazos River Conservation and Reclamation District (now Brazos River Authority) is created as a governmental agency, a municipality, body politic and corporate, vested with all the authority as such under the Constitution and Laws of the State; and shall have and be recognized to exercise all of the powers of such governmental agency and body politic and corporate as are expressly authorized in the provisions of the Constitution, Section 59 of Article 16, for Districts created to conserve, control, and utilize to beneficial service the storm and flood waters of the rivers and streams of the State, or such powers as may be contemplated and implied by the purposes of this provision of the Constitution, and as may be conferred by General Law, and in the provisions of this Act; and shall have and be recognized to exercise all the rights and powers of an independent governmental agency, municipality, body politic and corporate to formulate any and all plans deemed essential to the operation of the District and for its administration in the control, storing, preservation and distribution to all useful purposes of the storm and flood waters of the Brazos River and its tributary streams; as such District, shall have and be recognized to exercise such authority and power of control and regulation over such storm and flood waters of the Brazos River and its tributaries as may be exercised by the State of Texas, subject to the provisions of the Constitution and the Acts of the Legislature.'

Appellant's first point for reversal is that appellee's damages were caused by appellant's lawful use of Brazos River, for which appellant is not answerable in damages. Appellant says that 'it has a public right to store waters in the channel of the stream for the purposes of flood control and other beneficial uses of the Brazos River and that it is under no liability for the inevitable natural consequences of the exercise of its legal right.' If that proposition be correct, it would seem that no entity which undertakes by authority of law to appropriate, damage, or destroy for or apply to public use any property, would be liable for the 'inevitable natural consequences' of its undertaking, because every such exertion is the exercise of a legal right.

Article 1, Section 17, of the Texas Constitution, Vernon's Ann.St. provides that 'No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; * * *.' Since there are no exceptions or limitations attached to the constitutional provision, the State itself is not exempt from its requirements. City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57; State v. Hale, 136 Tex. 29, 146 S.W.2d 731. Agencies created by the State are not exempt. Ft. Worth Improvement Dist. No. 1 v. City of Ft. Worth, 106 Tex. 148, 158 S.W. 164, 48 L.R.A.,N.S., 994.

It is settled that one who obstructs the flow of a stream so as to make the waters flow onto and injure the lands of another is liable. City of Austin v. Howard, Tex.Civ.App., 158 S.W.2d 556. The damage may result from the operation of public works as well as from their construction. Gainesville, H. & W. Ry. Co. v. Hall, 78 Tex. 169, 14 S.W. 259, 9 L.R.A. 298. So, even if, when first constructed, a dam does not injure lands some distance away, when the pond, made by the dam, fills with mud, sand, or other things, causes overflows which injure lands, the owner has a cause of action. Hidalgo County Water Improvement Dist. No. 2 v. Holderbaum, Tex.Com.App., 11 S.W.2d 506; McDaniel v. Greenville-Carolina Power Co., 95 S.C. 268, 78 S.E. 980, 6 A.L.R. 1321; Hand v. Catawba Power Co., 90 S.C. 267, 73 S.E. 187; Cline v. Baker, 118 N.C. 780, 24 S.E. 516; Kennedy v. Union Electric Co., 358 Mo. 504, 216 S.W.2d 756; Milhous v. State Highway Department, 194 S.C. 33, 8 S.E.2d 852, 128 A.L.R. 1186; Pumpelly v. Green Bay & Mississippi Canal Company, 13 Wall. 166, 80 U.S. 166, 20 L.Ed. 557; United States v. Chicago B. & Q. R. Co., 7 Cir., 90 F.2d 161. The first point is overruled.

Appellant's second point is that it acted under the police power in storing water in Possum Kingdom Lake and the channel of the Brazos River and its tributaries, and is not liable for indirect and consequential damages incident to such exercise of the police power.

The shadowy boundary of the police power is the great 'Serbonian bog, * * *. Where armies whole have sunk.' But it is not necessary for us to become submerged in that bog. It is sufficient to show that even though the purpose for which public works are constructed and operated be to promote public welfare, health, morals, or safety, and therefore an exercise of the police power, property taken from the owner and put to such public use must be paid for. Generally, the police power regulates the use of or destroys private property because it is detrimental to the public. In such case it does not render compensation. But when private property is 'taken, damaged or destroyed for or applied to public use,' not because it has been used to the public's detriment, but because the new use will be beneficial to the public, compensation must be made. We have seen no authority which holds that where power is exerted to consummate an enterprise in the public interest which requires the taking or damaging of private property, there may be no compensation. Whether the power so exercised is called the police power or the power of eminent domain, it nevertheless results in a taking or damaging in the purview of the constitutional provision. 16 Tex.Jur., p. 448, sec. 159; 29 C.J.S. Eminent Domain Sec. 6, p. 784; Nichols on Eminent Domain, vol. 1, p. 66, sec. 1.42, p. 68, sec. 1.42(1). Compensation must be made in all cases where property is 'taken, damaged or destroyed for or applied to public use,' the police power not being above, but being subordinate to, the Constitution. Stockwell v. State, 110 Tex. 550, 221 S.W. 932, 12 A.L.R. 1116.

In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 160, 67 L.Ed. 322, 28 A.L.R. 1321, the court said:

'The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation * * * When this seemingly absolute...