City of Paris v. Tucker

• Decision Date: 17 February 1906
• Citation: 93 S.W. 233
• Parties: CITY OF PARIS v. TUCKER.
• Court: Texas Court of Appeals

93 S.W. 233

CITY OF PARIS v. TUCKER.

Court of Civil Appeals of Texas.

February 17, 1906.

Appeal from Lamar County Court; John W. Love, Judge.

Action by O. N. Tucker against the city of Paris. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Plaintiff sued the city of Paris for $800, alleged damages to land and crops by reason of the operation of a defective pipe line or main through premises occupied by him. The case was tried before a jury on the 24th day of March, 1905, and verdict rendered for plaintiff for $260. Appellant's motion for new trial was overruled on the 30th day of March, 1905, and appellant excepted to ruling in open court and gave notice of appeal. The appeal was duly perfected.

The petition, after setting out the citizenship of the parties and the incorporation of the city of Paris, alleged: That plaintiff is the owner of a freehold estate, entitled to the possession of, and is in sole possession of, the following described tract of land, situated in Lamar county, Tex., about 5½ miles from the city of Paris, Tex., consisting of 100 acres of land in the Henry Buckler headright survey. That for several years, to wit, since 1899, the defendant, city of Paris, has owned and maintained a storage lake near the premises of plaintiff; said lake being sued by said defendant for the purpose of supplying said city of Paris with water. That said lake is connected with said city of Paris by means of a pipe line or water main, which runs through the premises of the plaintiff. That some time in the fall of the year 1899, soon after the said defendant began using said line for the purposes aforesaid, said pipe line began to break and give way in different places along same on plaintiff's premises, thereby causing the water to flow out from said broken places in said pipe over plaintiff's land and crops. Plaintiff says that the means used by the said defendant city of Paris to convey said water from the said storage lake to the city of Paris through said pipe line or water main was by means of a powerful pump located at said storage lake, which forced a powerful stream of water through said pipe line from said lake to said city. That on each and every occasion said pump was put in operation for the purposes heretofore alleged water would flow out of said main or pipe line at different places along same on plaintiff's premises, in large quantities, thereby causing plaintiff's field and crops growing thereon to be overflowed, his crops destroyed, and the land rendered practically unfit for agricultural purposes. Plaintiff says that the breaking of said water main or pipe line of the defendant running through his said premises was of the constant and continuous character, said pipe line breaking and leaking, causing the water to flow out and over his land and crops constantly. If not from one place along same, it was from another. Plaintiff alleged that said pipe line aforesaid was constructed of poor material, weak and incapable of holding the volume of water forced through same, and that same was improperly laid, and negligently and improperly operated. Plaintiff says that the defendant wholly failed to keep said pipe line or water main in repair, and constantly used the same, knowing of its condition. That on different occasions defendant would pretend to repair same, digging great holes and ditches in said field, leaving them standing unfilled for a great length of time. That it was the duty of said defendant to repair and keep in good condition its said water main, and it was also its duty to refill all ditches and excavations so made in repairing said pipe line, all of which it negligently failed to do, causing plaintiff great inconvenience in cultivating the field and performing his duties about same, and adding to his annoyance he already suffered by reason of the leaky condition of the said pipe line and the water flowing in vast quantities from same out and over plaintiff's field and crops. It was alleged that by reason of the negligence of the defendant in the operation of its defective pipe line, the bursting of its main, and the overflowing of plaintiff's land and crops, he had been damaged as follows: $300 actual damage to his land, $300 to his crops, and $200 special damage for...