City of Houston v. Renault, Inc.

• Court: Texas Supreme Court
• Writing for the Court: WALKER; NORVELL
• Citation: City of Houston v. Renault, Inc., 431 S.W.2d 322 (Tex. 1968)
• Decision Date: 17 July 1968
• Docket Number: No. B--408,B--408
• Parties: The CITY OF HOUSTON, Texas, Petitioner, v. RENULT, INC., et al., Respondents.

Page 322

431 S.W.2d 322

The CITY OF HOUSTON, Texas, Petitioner, v. RENULT, INC., et al., Respondents.

No. B--408.

Supreme Court of Texas.

July 17, 1968.

Rehearing Denied Oct. 2, 1968.

William A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Carrol R. Graham and Herbert M. Beazley, Asst. City Attys., Houston, for petitioner.

Thompson, Coe, Cousins & Irons, R. B. Cousins, Dallas, Painter & Painter, James R. Roos, Houston, Greenhill & Speyer, Simon Greenhill, New York City, for respondents.

WALKER, Justice.

Renault, Inc., Renault Distributors, Inc., and Hughes-Peters, Inc., as successor to Sterling Motors, Inc., brought this suit against the City of Houston, Southern Pacific Railroad and Port Terminal Railroad to recover damage caused to 1,620 Renault and Peugeot automobiles and trucks by the impounding of surface waters on the land where the vehicles were stored. The trial court rendered judgment on the jury verdict that the plaintiffs take nothing. Plaintiffs appealed only as to the judgment in favor of the city. The Court of Civil Appeals reversed the trial court's judgment and rendered judgment against the city for $862,500.00. 415 S.W.2d 948.

In December, 1959, Sterling Motors, Inc., leased a tract containing some 27 acres owned by Andre Crispin and located in the 9000 block of Clinton Drive in Houston.

The property was leased as a site for storing the automobiles. Originally the natural flow of surface water from the tract was primarily to the east, but it appears from the evidence that water would have broken over to the south and west after building up to a depth of about one foot on the south part of the land. Immediately south of the 27-acre tract is Clinton Drive, which is a divided roadway constructed by Harris County. The south lane was built in about 1927 and the north lane in 1947. Since the surface of the road was several feet above the level of the leased premises, the roadway would, if adequate drainage were not provided, serve to impound water that might otherwise flow from the tract toward the south and west. A box culvert six feet wide and four feet high was placed under the road. The embankments and tracks of the Southern Pacific Railroad and the Port Terminal Railroad are immediately south of and parallel to Clinton Drive. Each of the railroads had placed two 48-inch round culverts under their embankments and approximately in line with the culvert under Clinton Drive.

Clinton Park Subdivision, which is located east of the Crispin property, was developed in 1941. At that time the elevation of the land included in the subdivision was raised from three to six feet, thus blocking the drainage in that direction. As a result of the changes in elevation, moreover, water from the western portion of the subdivision flowed to the west rather than to the east. After the subdivision was put in, the total area draining toward the culvert under Clinton Drive was approximately 422 acres. This drainage area included the leased premises, other land to the north and west, and part of Clinton Park Subdivision to the east. The entire area was annexed by the city in 1949.

Storage of the cars on the leased premises began early in 1960. During the period of three days from June 24 to June 26, 1960, a total of 14.25 inches of rain fell in the area. The total rainfall during the 36-hour period ending at noon on Saturday, June 25, was 5.91 inches. There is no contention here that this was an unprecedented rainfall. The culvert under Clinton Drive was not sufficient to carry off the water as it drained to that point, and by noon on saturday the entire storage area was covered to a depth of more than two feet.

Plaintiffs brought and tried their suit on three theories: (a) that their automobiles had been damaged for public use within in the meaning of Article 1, Section 17, of the Texas Constitution, Vernon's Ann.St., (b) absolute liability for impounding surface water in violation of Article 7589a; ¹ and (c) negligence. In response to the special issues that are material here, the jury: (1, 2, 7, 8) found that the city maintained the culvert under Clinton Drive at an elevation and of such size as to prevent adequate drainage of the area, but refused to find that the same was negligence; (13) refused to find that there was debris, silt and vegetation in the culvert; (19--20) found that Clinton Drive as maintained by the city impounded the natural flow of surface waters on the premises in question, and that such impounding was a proximate cause of the plaintiffs' damages; (23--24) found that the damages were proximately caused by the negligent failure of the plaintiffs to ascertain the drainage characteristics of the property; (25, 27) refused to find that the plaintiffs were negligent in placing the automobiles on the premises or that they failed to provide adequate watchman protection; (30) refused to find that the manner of storage of the automobiles interfered with the natural flow of the surface waters on the occasion in question; (33) refused to find that an act of God was the sole proximate cause of the damage; and (34--35) found that the builders of Clinton Park Subdivision diverted or impounded the natural flow of surface waters across plaintiffs' property, but refused to find that such diversion or impounding was the sole proximate cause of the damage.

The jury has absolved the city of negligence, and there is no contention that negligence was established as a matter of law. Article 7589a makes it unlawful for 'any person, firm or private corporation' to divert the natural flow of surface waters or impound the same in such manner as to damage the property of another. We agree with the Court of Civil Appeals that this statute does not apply to municipal corporations. See State v. Central Power & Light Co., 139 Tex. 51, 161 S.W.2d 766. If the city is liable then, it must be on the theory that plaintiffs' automobiles were damaged for public use within the meaning of Article 1, Section 17, of our Constitution.

It has been pointed out on several occasions that this section of the Constitution does not give a cause of action against those constructing public works for acts which, if done by an individual in pursuit of a private enterprise, would not be actionable at common law. See Trinity & S. Ry. Co. v. Meadows, 73 Tex. 32, 11 S.W. 145, 3 L.R.A. 565; Southwestern Public Service Co. v. Moore, 119 Tex. 391, 29 S.W.2d 329; Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 14 S.W. 259, 9 L.R.A. 298. This test has been criticized and may not be infalible. See 2 Nichols on Eminent Domain, 3rd ed. 1963, § 6.441. We fail to see any material difference, however, between damage to transitory personal property caused by the impounding of surface water and damage to buildings caused by loss of lateral support. It is settled that as to the latter the Constitution does not go beyond the common law rule to impose liability without fault. City of Amarillo v. Gray, Tex.Civ.App., 304 S.W.2d 742 (holding approved 158 Tex. 275, 310 S.W.2d 737). In our opinion the same principle applies here, and the city is not responsible for the damage to plaintiffs' automobiles unless the same would be actionable at common law if inflicted by a private individual. Otherwise 'the municipality would be held to a higher liability than a private person engaging in the same acts.' City of Abilene v. Downs, Tex.Sup., 367 S.W.2d 153.

There has been much discussion and even more confusion concerning the rights and duties of adjoining landowners with respect to surface water. Under the civil law rule, which prevails in England and a number of states, the owner of the lower land may make any reasonable use of his property for the production of crops but is under the general duty to receive surface water flowing thereon when untouched and undirected by the hand of man. Opposed to this is the so-called common enemy doctrine, which recognizes the right of a landowner to turn surface water from his own property without liability for damage that may be caused by such obstruction or diversion. See 56 Am.Jur. Waters § 67 et seq. The common enemy doctrine was adopted in Texas and a number of other jurisdictions in the mistaken belief that it was the rule of the English common law. Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451; Barnett v. Matagorda Rice & Irrigation Co., 98 Tex. 355, 83 S.W. 801; Gross v. City of Lampasas, 74 Tex. 195, 11 S.W. 1086.

As pointed out in Miller, our Courts of Civil Appeals applied the common enemy doctrine until the predecessor of Article 7589a was adopted in 1915. This statute was omitted from the codification of 1925, but was reenacted in 1927. Since that time most controversies over damage caused by surface water have been governed by that or some similar statute, and we have not reexamined our common law rule in the light of developments in other jurisdictions. By modifying and qualifying the traditional rules, the courts in a substantial number of states have 'tended toward a more flexible middle position' which gives them 'considerable leeway in adjusting the rights of the parties in the light of particular circumstances.' They hold generally that surface water may be fended off if done reasonably, for a proper purpose and with due regard for the adjoining property, but that there is no right to obstruct its flow arbitrarily, negligently, wantonly or unreasonably. Some courts which ordinarily follow the civil law rule have recognized that the owner of urban property may protect the same against the surface water of an adjoining lot without subjecting himself to liability. See Annotation, 59 A.L.R.2d 421; 56 Am.Jur. Waters §§ 70, 78.

According to the American Law Institute, the liability of one who causes an...