City of Austin v. Howard

• Citation: 158 S.W.2d 556
• Decision Date: 19 November 1941
• Docket Number: No. 8993.,8993.
• Parties: CITY OF AUSTIN v. HOWARD.
• Court: Court of Appeals of Texas

158 S.W.2d 556

CITY OF AUSTIN v. HOWARD.

No. 8993.

Court of Civil Appeals of Texas. Austin.

November 19, 1941.

Rehearing Denied January 28, 1942.

Amended Motion for Rehearing Denied January 28, 1942.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Travis County; Ralph W. Yarbrough, Judge.

Action by Eugene Howard against the City of Austin for damages to plaintiff's land and nursery stock caused by the overflow of a river. From a judgment for plaintiff, defendant appeals, and plaintiff assigns cross-error.

Reversed and remanded.

Trueman O'Quinn, City Atty., Horace W. Morelock, Gibson R. Randle, and W. T. Williams, Jr., Asst. City Attys., Hart & Brown, Powell, Wirtz, Rauhut & Gideon, and C. B. Jeffrey, all of Austin, for appellant.

Looney & Clark, and Cofer & Cofer, all of Austin, for appellee.

BAUGH, Justice.

Appeal is from a judgment, based upon a special issue verdict, in favor of Howard against the City of Austin, for $15,000 damages to his land and nursery stock caused by the 1938 overflow of the Colorado River. Howard's 40 acres of land, on which he operated a nursery, is located in the Colorado River valley some three or four miles east of, or down the river from, the City of Austin, and subject to overflows from the river. In 1936, the City of Austin established a sewage disposal plant south of and between Howard's tract and the main channel of the river. At this point the course of the river is substantially from west to east, but to the east of this area the course turns northeastward.

The site of the sewage disposal plant was in close proximity to Howard's south line. The plant covered several acres, was also located on lands subject to overflow, and when completed, the City, in order to protect it against flood waters, erected a levee completely around it, some 10 to 12 feet in height above the level of the surrounding ground. The upstream or west end of this dyke came approximately to a point, and widened out eastward. On the north side of the plant it ran approximately parallel to Howard's south line and on the south side it ran approximately parallel to the main channel of the river. The enclosure thus made around the disposal plant was about 1,200 feet long, pointed at the west or upper end, and widening out near the center to approximately 500 feet.

Howard's suit was based upon the grounds alleged that the City had negligently constructed, in one of the flood channels, where the water was accustomed to flow when the river overflowed, an obstruction which diverted the flood waters of the river from their natural channel and caused same to flow across his lands at a greater depth and at a greater velocity than otherwise would have occurred, thus causing the damage complained of.

In addition to general and special exceptions and general denial, the City urged as defenses:

1. That plaintiff's lands, due to the unusual flood, would have been overflowed and would have sustained the same damage even if the levee had not been built.

2. That plaintiff's damages were due to an act of God in that the flood in question was unprecedented.

3. That the City in the erection of the plant and levee was acting in a governmental capacity to protect the public health and was therefore not liable.

4. That plaintiff with full knowledge of all the facts, and of previous overflows, was guilty of contributory negligence in planting a nursery on lands subject to such overflows and should have anticipated such damages.

The case was tried to a jury on special issues in answer to which they found:

1. That the City built its plant and levee in a portion of the flood channel of the Colorado River.

2. That the levee around it obstructed a portion of the flood channel, and diverted a part of the flood waters of the flood of July, 1938.

3. That such diversion of these waters damaged Howard's land to the extent of $4,000; and his nursery stock to the extent of $11,000.

4. That the 1938 flood was not an unprecedented flood.

5. That the City was guilty of negligence in building the levee where and as it did; and that such negligence proximately caused plaintiff's damages.

6. Special issue No. 16 submitted to the jury was: "Do you find from a preponderance of the evidence that if defendant's sewage disposal plant and the dyke or levee surrounding the same had not been constructed, the flood occurring in the Colorado River, in July, 1938, would, nevertheless, have caused approximately the same damage, if any, which it did cause to Plaintiff's land and shrubbery?"

To this issue the jury answered "No."

Appellant's first contention embodied in propositions 1 and 4 is that the evidence shows as a matter of law that the 1938 flood was unprecedented, and consequently an act of God, and that the City was not, therefore, liable for the resulting damages.

This issue was submitted to the jury under proper instructions, not here complained of, as to what constituted an unprecedented flood, and found against the City. The evidence did show that the 1938 flood because of its duration did discharge a greater quantity of water than any flood of which the United States Department of Agriculture (dating back to 1898) had any record; but it was also shown that all of this area, including Howard's land and that constituting the situs of the disposal plant, had been overflowed in 1899, 1900, 1913, 1922, 1929, 1935, and 1936. That the 1929, 1936, and 1938 floods were of approximately the same height; but that the 1935 flood, though of shorter duration, was some six or seven feet higher than the 1938 flood. Thus the jury was warranted in finding that the 1938 flood could, in the light of past experiences, have been reasonably anticipated. This is the test in determining what constitutes an unprecedented flood. Gulf, C. & S. F. R. Co. v. Pomeroy, 67 Tex. 498, 3 S.W. 722; San Antonio & A. P. R. Co. v. Kiersey, 98 Tex. 590, 86 S.W. 744; Mistrot-Calahan Co. v. Missouri, K. & T. R. Co., Tex.Civ. App., 209 S.W. 775; 1 Tex.Jur., §§ 3 and 4, pp. 694-699, and cases cited.

Appellant also contends that it was entitled to an instructed verdict because the evidence conclusively showed that Howard's land and shrubbery would have suffered the same damage from the 1938 flood had the sewage disposal plant not been built. Suffice it to say that this issue was found against appellant on conflicting evidence. Consequently this contention cannot be sustained.

The next contention presented relates to the refusal of the trial court to submit to the jury special issues requested by the City. We shall not prolong this opinion by a detailed discussion of the several issues requested. Some of them were in effect covered by the issues submitted to the jury, while others as requested were either too indefinite or were duplicitous in that they embodied in one question damages both to the land and damages to the shrubbery growing thereon, separate items of damage.

We have reached the conclusion, however, that the court erred in failing to submit, as requested special issue No. 9, which in reality embodied four related issues. These issues were:

"No. 9. A. Do you find from a preponderance of the evidence that the construction of the new Montopolis Bridge and the new road and approach leading to said Bridge on the north side of the Colorado River created an obstruction or restriction to the flow of the flood waters in said River during the flood occurring therein in July, 1938?

"B. Do you find from the evidence that the construction and existence of the new Montopolis Bridge and the road and approach leading to such Bridge on the north side of the Colorado River obstructed or diverted flood waters in said river during the flood occurring therein during July, 1938, so as to divert the same and cause them to flow over and upon plaintiff's land in a different manner than they would have flowed except for the existence of such bridge, road and approach?

"If you have answered the foregoing question in the affirmative, and only in that event, you will answer the following:

"C. Do you find that the construction and existence of the new Montopolis Bridge and the road and approach leading to such Bridge on the north side of the Colorado River, as the same existed during the flood occurring in said river during July, 1938, contributed to the injury or damage, if any, suffered by plaintiff's land and shrubbery during such flood?

"D. If you have answered the next preceding issue in the affirmative, and only in that event, then you will answer the following:

"Are you able to determine from the evidence before you what proportion of the injury or damage, if any, suffered by plaintiff's land and shrubbery was caused by waters of the Colorado River diverted across said land, if any was so diverted, by reason of the construction and existence of defendant's sewage disposal plant and the levee or dike surrounding the same, or what proportion thereof was caused by the construction and maintenance of such Bridge, road and approach, as the same existed at the time of said flood?"

While such defense was not specially pleaded by the City it was raised by the evidence, and the City was entitled, under its general denial, to have these issues determined by the jury. Gulf, C. & S. F. Ry. Co. v. Seydler, Tex.Civ.App., 132 S. W.2d 453; Wichita Valley R. Co. v. Marshall, Tex.Civ.App., 37 S.W.2d 756, 758; San Antonio & A. P. R. Co. v. Gurley, 37 Tex.Civ.App. 283, 83 S.W. 842; 41 Tex.Jur. § 282, p. 1120.

It is settled that one who obstructs the flood channels of a stream so as to cause the flood waters thereof, when the stream overflows, to flow upon and injure the lands of another, if without the obstruction, such injury would not have occurred, is liable in damages. Bass v. Taylor, 126 Tex. 522, 90 S.W.2d 811; State v. Hale, Tex.Civ.App., 96 S.W.2d 135; Id., 136 Tex. 29, 146 S.W.2d 731. Nor is such liability based upon negligence, but upon Sec. 17, Art. I of the...