City of Amarillo v. Ware

• Decision Date: 10 June 1931
• Docket Number: No. 1459-5694.,1459-5694.
• Citation: 40 S.W.2d 57
• Parties: CITY OF AMARILLO v. WARE.
• Court: Texas Supreme Court

Page 57

40 S.W.2d 57

CITY OF AMARILLO v. WARE.

No. 1459-5694.

Commission of Appeals of Texas, Section A.

June 10, 1931.

Certified Questions from Court of Civil Appeals of Seventh Supreme Judicial District.

Action by J. E. Ware against the City of Amarillo. Judgment for plaintiff, and defendant appeals. On certified questions from the Court of Civil Appeals.

Questions answered.

Underwood, Johnson, Dooley & Simpson and Vance Huff, all of Amarillo, for appellant.

Works & Bassett, of Amarillo, for appellee.

SHARP, J.

This case is before the Supreme Court upon certified questions from the honorable Court of Civil Appeals of the Seventh district.

The case originated in the district court of Potter county. J. E. Ware sued the city of Amarillo, alleging that he owned a certain tract of land situated about two and one-half miles from the city limits; that his land is located in a natural draw or drain, and is composed of rich valley land and some inferior upland, and a large part thereof is subirrigated, which made it subject to cultivation, upon which valuable crops could be grown. That during the latter part of the year 1927 and the first part of the year 1928 the city constructed and put into service a system of storm sewers, which was completed about April, 1928, and storm water from over a large part of the city was thrown therein. That the system of storm sewers drains some 1,200 or 1,500 acres of land in the city, the streets and alleys of a large portion of which are paved, and other portions of which are covered by roofed buildings, which prevent water soaking in the ground. That the water is finally thrown into one large sewer pipe, the outlet of which is eight or more feet across. That the natural drainage for the water falling in the city is to the southeast and to the west and northwest. That prior to the installation of the system of storm sewers, the water falling in the city drained in that direction. That the city diverted the water by collecting it in the storm sewers and throwing it to the north side of the city on to and across the land owned by Ware. That the city in order to divert the water from its natural drainage and force it through the outlet to the north, it was necessary and the city did sink the pipe forming the outlet for the water in that direction to a depth of about thirty feet, digging through a natural ridge of ground in the north part of the city for the purpose. Theretofore, the natural ridge had prevented the water falling in the city from flowing in a northerly direction and no part of the water falling in the city had theretofore at any time flowed on to or across any of Ware's land. That since the completion of the sewer system and the diversion of the water from its natural drainage, the result has been that Ware's land has been overflowed and washed and crops growing thereon have been injured and destroyed. That the land has been overflowed each and every time any considerable rain has fallen in the city, and since the completion of the sewer system the land has been frequently overflowed, the depth and width of the overflow varying according to the amount of rainfall in the city and all of the overflow contributing proximately to the damage herein claimed. That the land is so situated that the natural drainage of the territory in which it is situated would be through and across same, said draw or drain passing diagonally across the land about the middle thereof, but that at no time since the completion of the sewer system has the rainfall in that territory been of sufficient amount to have overflowed any of the land to any great extent, nor has it been of sufficient amount to have damaged any of the land or injured or destroyed the crops growing thereon. That the water overflowing the land from the sewer remained thereon for a much longer period of time than the water naturally draining across the land, causing same to remain for periods of time running from four or five hours to as long as eighteen hours, and on three or more occasions since the completion of the storm sewer the land has been overflowed and washed when there was no rain at all in the territory that would naturally drain across plaintiff's land. That the water flowing in that territory and naturally draining across the land was an insufficient amount to have overflowed more than a small portion of the land, and same would not have remained thereon more than an hour or so at the most, and would not have flowed with sufficient force to have washed any of the land or damaged or destroyed the crops growing thereon. That the water so diverted by the city is thrown into the pipes forming the sewer system at great speed and in great quantities. That all of the pipes are made of smooth hard material and are placed in the ground so as to give a rapid fall. That the outlet pipe being given a fall of several feet from the city to where it is emptied out in the north part of the city, the water being thrown thereby out of the pipe with great force and at great speed and in such quantities that when it reaches the land, practically all of which is low level land, it is caused to spread over and overflow same in such way and to remain thereon for such length of time that the land and the soil thereof is washed and carried away and the crops thereon are injured and destroyed. That up to the present time the rainfall in the city, and the territory drained by the storm sewers, are of such capacity that said outlet pipe has at no time been full. That more territory in the city is included in the storm sewer system as now laid out, which will be connected up with the sewer system and drained thereby, and as more streets in said area so drained by the storm sewer are paved, the amount, force, and speed of the diverted water will be greater and same will be diverted on to and across the land in greater speed and force, and caused to spread over the land to a greater depth, thereby ruining and completely destroying the value of the land for the purposes for which the owner has been using same, and for which it is suited. That the sewer system is permanent, and the additional territory in the city will be permanently drained in the future thereby. That the land has been so damaged and appropriated by the city by so using same for an outlet for the sewer water and same is and will continue to be a permanent damage and appropriation of the land, the diversion of the water on to and across the owner's land having been done by the city without the consent and over the protest of the owner.

Ware further alleges that he is the owner of fifteen acres of the land above mentioned and has erected valuable and permanent improvements thereon for his use as a home, including a house, fences, orchard, etc.; that two acres of the land is subirrigated and is valuable for the raising of garden truck, fruits, alfalfa, and other valuable crops and products; that about two acres of the land has been so washed that there is now a sag in same upon which water will stand; that plaintiff's fences have been washed away, etc.; that the value of the land has been practically destroyed.

There are many other allegations in plaintiff's petition which tend to amplify the allegations above set forth, together with the allegations as to the crops destroyed and the value thereof.

Plaintiff prays for a judgment for actual damages, both special and permanent, and for general and special relief, both in law and in equity, etc.

The defendant city presented to the trial court a general exception and several special exceptions, claiming that the plaintiff is not entitled to recovery, in substance, for the following reasons:

(a) Because that the claim asserted by plaintiff against the city is a claim for damages alleged against the city in the doing and performing of acts of a purely governmental nature, as contradistinguished from those acts of a municipal corporation resulting in monetary gain to it, and that the voluntary acts were for the benefit of the population of such municipality.

(b) That the land owned by plaintiff, damages to which is sought to be recovered, is located north of the city and in a natural drain or draw, and that the natural drain of water falling in the city is to the west and northwest, and that the plaintiff's land is located in the bed of the natural drain or draw and located to the north of the city in the direction of the natural drainage of the city.

(c) Because there is no allegation in plaintiff's petition affirmatively alleging that the watershed drained by the natural draw or drain in which plaintiff's lands are located was increased in size or area by the construction of the storm sewer complained of by the city.

(d) There is no allegation that a larger territory of land is caused to drain its surplus water on to plaintiff's land by virtue of the construction of the storm sewer than would otherwise have been done.

(e) Because plaintiff does not allege that what was done by the city towards carrying out its plan of installing its storm sewer system that in grading and paving of its streets it was in any manner negligent, or that such grading and paving work was negligently done so as to injure the plaintiff, and that under the law the city, being a municipal subdivision of the state, cannot be liable for damages to the plaintiff in grading and paving its streets, etc., unless the grading and paving is negligently done.

(f) Because it is not shown that street grading, street paving, and street improvements resulting in a change of direction in the flow of surface water falling in the city was in any manner negligently done.

(g) Because it is not shown in plaintiff's petition that the natural area of drainage or watershed was enlarged by the storm sewers in question.

(h) That plaintiff's petition as a whole in attempting to state a cause of action against the city for damages for alleged permanent injury to ...