Brazos River Authority v. City of Graham

Decision Date03 October 1961
Docket NumberNo. A-7912,A-7912
Citation354 S.W.2d 99,163 Tex. 167
PartiesBRAZOS RIVER AUTHORITY, Petitioner, v. CITY OF GRAHAM, Respondent.
CourtTexas Supreme Court

Roger Tyler, Austin, J. R. Creighton, Mineral Wells, Brown, Herman, Scott & Young, Fort Worth, J. Robert Howard, Lubbock, Martin Harris, and Clark, Mathews, Thomas, Harris & Denius, Austin, for petitioner.

Jennings & Montgomery, Graham, for respondent.

NORVELL, Justice.

Based upon special findings of a jury, the District Court of Young County, Texas, rendered judgment for the sum of $430,750 in favor of the City of Graham and against the Brazos River Authority. The Court of Civil Appeals affirmed. 335 S.W.2d 247.

The city's theory of recovery was that the River Authority had taken or damaged three pieces of property owned and used by it in carrying out its municipal functions. Article 1, § 17, Texas Constitution, Vernon's Ann.St. The jury found that the city's sewage disposal plant, its water treatment plant and its Salt Creek 'channel reservoir' had all been rendered subject to flooding as a result of the 'construction, maintenance and operation of Possum Kingdom Dam and the siltation * * * resulting therefrom.' It also found that the intrinsic value of the sewage disposal plant 'at the present time had Possum Kingdom Dam not been constructed and maintained and operated' would have been $140,000, but that by reason of the construction, maintenance and operation of such dam, the value of the sewage disposal plant was only $750 at the present time; a difference of $139,250. Similar findings were made with reference to the water treatment plant (before, intrinsic value-$250,000; after-$1,500-difference-$248,500), and the 'channel reservoir' (before, intrinsic value-$43,000; after-none,-difference-$43,000).

The River Authority as petitioner in this Court attacks the judgments of the courts below by nine points of error wherein it asserts that the Authority is not liable in law for injuries resulting from the flooding of any of the respondent city's facilities ; that as a matter of law, the evidence relating to damages will not support a recovery for the damaging or taking of the water treatment plant or the 'channel reservoir'; that the city's action is barred by the two year statute of limitations, Article 5526, Vernon's Ann.Tex.Stats.; that the District Court erroneously excluded from evidence a purported release executed by the city to the Authority, and that the trial court erroneously instructed the jury as to the measure of damages and improperly commented upon the weight of the evidence.

Petitioner under its first contention above mentioned asserts that the city as an upper riparian on the Brazos has no vested right to have the waters of the Brazos and its tributary, Salt Creek, flow by its land at undiminished speed and that it is the checking of the flow of the river by the operation of the Possum Kingdom Dam that causes siltation which in turn brings about a rise in the water level of the Brazos and Salt Creek and results in the flooding of respondent's property; that petitioner is entitled to use the bed and banks of the Brazos for the storage and flow of water under the statutory direction of the State, and that respondent's lands are subject to a servitude whereby damages resulting from the State's efforts to control flood waters cannot be recovered from the State.

The pertinent facts of the case, particularly those relating to the first argument or contention of the petitioner above mentioned, are:

The Brazos River Authority, formerly the Brazos River Conservation and Reclamation District, is a public governmental agency created directly by legislative enactment under authority of the Conservation Amendment to the Texas Constitution. See Article 16, § 59, Texas Constitution, Article 8280-101, Vernon's Ann.Tex.Stats. In 1941, the Authority constructed the Possum Kingdom Dam across the Brazos in Palo Pinto County. This dam is located to the west and upstream from the City of Mineral Wells. The spillway of the dam is one thousand feet above sea level. The construction of the dam resulted in the formation of Possum Kingdom Lake which covers some 26,000 acres and extends from the dam in a generally westerly and northerly direction for some 65 miles up the Brazos. In order to provide for the bed and banks of such lake, the Authority secured, by purchase or condemnation, lands and easements over lands for permanent or intermittent flooding up to the 1100 foot contour mark, although this was not the invariable practice or rule. Gooseneck Bend on the Brazos is a large ox-bow loop located approximately 55 miles up the Brazos from the Possum Kingdom Dam. Salt Creek flows approximately north to south and joins the Brazos at Gooseneck Bend. The City of Graham is located on the east side of Salt Creek. Its sewer disposal plant is located near the southwest corner of the city limits on the west side of the creek and about three miles upstream from the Salt Creek-Brazos confluence. This plant was built in 1923 long before the construction of the Possum Kingdom Dam and has been improved and modernized since that time. The 'channel dam' heretofore mentioned is located across Salt Creek approximately one and a quarter miles above the sewage disposal plant. This dam was built in 1908 and enlarged in 1923. It creates a small channel reservoir in Salt Creek which holds about ten acre feet of water and is used as an emergency or standby water supply for the city. The city's water treatment plant is located on the east side of Salt Creek about 1200 feet upstream from the channel dam and about a mile and a half above the sewage disposal plant. The main source of the city's water supply comes from two reservoirs, Lake Graham and Lake Eddleman, which are upstream from the water treatment plant and located on separate branches of Salt Creek. These lakes are connected by a canal and water is taken from them through Lake Eddleman to the water treatment plant by means of a 16 inch pipe line.

The elevation of the clarifier outlet of the sewage disposal plant is 1003.94 feet above sea level. The clarifier wall is two feet higher in elevation. The elevation of the top of the channel dam is 1009.97 feet while the engine room floor of water treatment plant is at an elevation of 1019.09 feet. When the water in Salt Creek rises above an elevation of 1003.94 feet, the sewage disposal plant is rendered inoperative with the result that raw sewage flows into the creek. When the water rises above the top of the channel dam, 1009.97, the water behind and impounded by the dam is rendered unfit for municipal use, and cannot be processed by the water treatment plant. When the water mark exceeds 1019.09 feet, the operation of the water treatment plant is severely hampered and it cannot effectively process waters from the city reservoir.

It appears that all these facilities of the city have been flooded to a more or less extent upon one or more occasions. The sewage disposal plant has been repeatedly flooded.

The nature and extent of the siltation problem in Possum Kingdom Lake is fully developed by the testimony. The headwaters of the Brazos are located in New Mexico but little or none of the water which falls in the Brazos watershed west of the caprock in West Texas reaches Possum Kingdom Lake. The Brazos watershed lying between the caprock and Gooseneck Bend is approximately 13,000 square miles. The area is semiarid and the waters drained from the basin are heavily laden with silt. For a ten-year period extending from 1924 to 1934, the river carried annually about 9,900,000 tons of silt past the Mineral Wells gauging station (about 65 miles below Gooseneck Bend) according to the measurements of the United States Geological Survey. One witness described the silt carriage load of this period as being the equivalent of 6,500 acre feet per year. For an approximate 13-year period from 1941 to 1954, the annual silt carriage measured at the South Bend gauging station (about ten miles above Gooseneck Bend and above the backwater of Possum Kingdom Lake) was considerably less, being 3,760,220 tons per year. This was explained by the presence of drought conditions during the 1941-54 period in which the water drained from the river basin was reduced from an average of 953,550 acre feet per annum for the 1924-34 period to 467,179 acre feet annually for the 1941-54 period. The average annual silt load carried over the Possum Kingdom Dam for the 1941-54 period was 88,065 tons as compared to 3,760,220 tons of silt carried into the reservoir. In other words, during a 12.71 year period ending in 1954, some 46,673,090 tons of silt was deposited in Possum Kingdom Lake. Less than three per cent of the silt carried into the Lake was taken out.

This process of siltation has resulted in the raising of the floor of the Lake above the elevation on the original bed of the river and the narrowing of the channel of the stream of the current running through the waters of the Lake. At and near the head of the Lake-around Gooseneck Bend-the siltation and sedimentation has been extremely heavy. When the flowing water of the Brazos reaches the static water of the Lake, with the consequent slowing of the speed of the waters, the heavy particles of silt known as the 'bed load' are deposited resulting in the formation of sandbars and similar barriers in the bed and shores of the upper portions of the Lake.

The rise in the elevation of the level of the waters in the river and in the Lake at Gooseneck Bend is indicated by the testimony of the witness Robert Gooch. His testimony and charts showed the following water elevations in 1938-before the construction of the dam;-in 1941,-immediately after the construction of the dam,-and in 1954, after the dam had been in operation for some thirteen years, according to various quantities of water which would pass by a given point on the...

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