City of Princeton v. Abbott

• Decision Date: 16 May 1990
• Docket Number: No. 05-89-00527-CV,05-89-00527-CV
• Citation: 792 S.W.2d 161
• Parties: CITY OF PRINCETON, Texas, Appellant, v. Tonnie ABBOTT and Mildred Abbott, Appellees.
• Court: Texas Court of Appeals

Page 161

792 S.W.2d 161

CITY OF PRINCETON, Texas, Appellant, v. Tonnie ABBOTT and Mildred Abbott, Appellees.

No. 05-89-00527-CV.

Court of Appeals of Texas Dallas.

May 16, 1990.

Rehearing Denied July 10, 1990.

Robert F. Brown, Dallas, for appellant.

Raymond G. Wheless, Dallas, for appellees.

Before McCLUNG, LAGARDE and OVARD, JJ.

OPINION ON MOTION FOR REHEARING

OVARD, Justice.

Our opinion dated March 19, 1990, is hereby withdrawn, and this opinion on the City of Princeton's motion for rehearing is substituted in its place.

The City of Princeton (the City) appeals a jury verdict rendered in favor of Tonnie Abbott and Mildred Abbott (the Abbotts) involving the responsibility for water damage incurred by the Abbotts. This is the second time this Court has had the opportunity to hear this case. See Abbott v. City of Princeton, Texas, 721 S.W.2d 872 (Tex.App.--Dallas 1986, writ ref'd n.r.e.). The first time this case came to our Court, we reversed a summary judgment rendered in favor of the City. The City raises nine points of error in this appeal, addressing various legal and factual insufficiency points, the overruling of the City's objections to certain submitted questions, as well as the denial of some of the City's requested questions and instructions. Finding no merit in any of the City's contentions, we affirm the trial court's judgment.

The record reflects that, in 1969, the Abbotts purchased a two-acre tract of land in Princeton, Texas. Soon after the purchase, a roller skating rink was constructed on the property. Immediately north of the Abbotts' property exists an easement owned by the City, originally granted to the City to use as an extension for a street. Located on this easement is an agricultural terrace/embankment. Immediately north of the City's easement existed terraced farmland owned by the Princeton Independent School District. In 1971, the school decided to level the agricultural terraces, which placed the land in its natural state, in conjunction with the construction of a football stadium and adjoining parking lot. After the leveling of the terraces, upon heavy rainfall, the rainwater would run from north to south, collect at the City's embankment, and then overflow the embankment, damaging the Abbotts' roller rink. Before the terraces were leveled, they operated as a series of dams which stopped and diffused the flow of rainwater.

Because points of error one through three address legal, and in the alternative, factual sufficiency evidentiary points, they will be discussed together. In addressing a legal sufficiency or no evidence challenge, we must consider only the evidence and inferences, viewed in their most favorable light, which support the jury's finding, and we must disregard all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1986); Alm v. Aluminum Co. of America, 717 S.W.2d 588, 593 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford, 726 S.W.2d at 16. When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983); Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970); see also Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX.L.REV. 361 (1960). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, there is some evidence or, in other words, more than a scintilla of evidence. Kindred, 650 S.W.2d at 63.

In addressing a factual sufficiency of the evidence challenge upon a jury verdict, an appellate court must consider and weigh all of the evidence, not just that evidence which supports the verdict as is done in the face of a no evidence challenge. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The verdict should be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176; Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985). However, this Court has stated that we are not a fact finder, and thus, we may not pass on the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.--Dallas 1986, writ ref'd n.r.e.).

The City maintains that the trial court erred in denying the City's motions for judgment n.o.v. and new trial because the evidence adduced at trial is legally, and in the alternative, factually insufficient to support the jury's findings that: (1) the natural flow of surface water had been diverted or impounded by the City in a manner to damage the Abbotts' property; (2) thirty thousand dollars should be awarded to the Abbotts for the reasonable expenses for necessary work, labor, and materials to prevent or avoid future water damage; and (3) the diversion or impoundment of the natural flow of surface water constituted a nuisance to the Abbotts. After a thorough review of the record, we determine that the evidence is sufficient, both legally and factually, to support the jury's findings.

Surface water has been defined as "[t]hat which is diffused over the ground from falling rains or melting snows, and continues to be such until it reaches some bed or channel in which water is accustomed to flow." Stoner v. City of Dallas, 392 S.W.2d 910, 912 (Tex.Civ.App.--Dallas 1965, writ ref'd n.r.e.); Sullivan v. Dooley, 31 Tex.Civ.App. 589, 73 S.W. 82, 83 (1903, no writ); see also RESTATEMENT (SECOND) OF TORTS § 846 and comment b (1979). The record reflects that this is precisely the type of water which collected or was impounded by the City's embankment, and then overflowed, damaging the Abbotts' property. The City contends that its conduct, in owning and maintaining the embankment, is not actionable under section 11.086(a) of the Texas Water Code ¹ because the water that it is collecting or impounding is not the natural flow of "surface water." Specifically, the City contends that the water which collects at the City's embankment has not reached it in a natural state because the terrain has been altered by the school district's action in leveling the agricultural terraces. The City argues that since the land has been altered by nonnatural forces, the water, which flows over this altered land, has lost its "natural flow" characterization. We disagree. Although we are sympathetic to the fact that a third party was responsible for the terrain alteration which contributed to the Abbotts' damage, it nonetheless does not change the fact that the water which collects at the City's embankment reaches the embankment as a result of a natural flow, unaltered by any nonnatural, intervening factors. In light of the aforementioned case law interpreting "surface water," the fact that the land was returned to its natural state after the leveling of the agricultural terraces in 1971, the evidence contained in the record describing how the rainwater travels, as well as the fact that the City admitted, in response to the Abbotts' request for admissions, that the City's embankment impounds surface water, we hold that the evidence is both legally and factually sufficient to support the jury's finding of impoundment of the natural flow of surface water. Stafford, 726 S.W.2d at 16; Cain, 709 S.W.2d at 176. Point of error number one is overruled.

In its second point of error, the City complains of the submission of a question to the jury concerning the amount of money necessary to compensate the Abbotts for "reasonable expenses for necessary work, labor and materials to prevent or avoid future water damage." The jury answered this question with an amount of thirty thousand dollars. The City frames its point of error by stating that the evidence is legally, and in the alternative factually, insufficient to justify the submission of the question. The City's legal insufficiency point is not that there is no evidence to support the submission, but that, as a matter of law, future damages are not recoverable for temporary injuries to land.

We will first address the legal sufficiency point and then address the factual sufficiency point. We agree with the City that the injury to the Abbotts' property is one that appears to be of a temporary nature brought about by occasional heavy rainfall. See, e.g., Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex.1984); Kraft v. Langford, 565 S.W.2d 223, 227 (Tex.1978); Abbott, 721 S.W.2d at 875. We further agree that the general measure of recovery for temporary injuries to land caused by impoundment of surface water is the cost of restoring the property to its condition immediately before the injury, plus the reasonable value of the loss of its use. See, e.g., Kraft, 565 S.W.2d at 227; Lone Star Gas Co. v. Hutton, 58 S.W.2d 19, 21 (Tex.Comm'n App.1933, holding approved); Willacy County Water Control & Imp. Dist. v. Cantrell, 169 S.W.2d 203, 204 (Tex.Civ.App.--San Antonio), writ dism'd, 141 Tex. 335, 172 S.W.2d 294, 295 (1943). However, the recovery sought in the submission of the contested jury question does not fall neatly into the type of damages recoverable for temporary injuries. Without ensnaring ourselves in the finer distinctions between permanent and temporary injuries and the particular type of damages recoverable under each, we hold that, based upon the facts in the record before us, the submission and subsequent recovery for expenses necessary to accommodate inevitable future flooding problems was not a recovery for future damages prohibited under a temporary injury theory.

Russell Betts, the City's consulting engineer, testified...