City of Waco v. Roberts

• Court: Texas Court of Appeals
• Writing for the Court: Barcus
• Citation: City of Waco v. Roberts, 12 S.W.2d 263 (Tex. App. 1928)
• Decision Date: 01 November 1928
• Docket Number: (No. 718.)
• Parties: CITY OF WACO v. ROBERTS et al.

12 S.W.2d 263

CITY OF WACO v. ROBERTS et al.

(No. 718.)

Court of Civil Appeals of Texas. Waco.

November 1, 1928.

Rehearing Denied January 10, 1929.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Action by H. D. Roberts and others against the City of Waco. Judgment for plaintiffs, and defendant appeals. Affirmed.

Geo. Morrow and John McGlasson, both of Waco, for appellant.

Bryan & Maxwell, of Waco, for appellees.

BARCUS, J.

Appellees owned a tract of land in Waco, about 118 feet frontage and running back about 200 feet, about two blocks from Waco creek, on which land were located three houses, one of them being occupied by appellees as their family residence. Appellant dug a channel and changed said creek, making same run near appellees' property. Appellees instituted this suit to recover compensation for the permanent damage which they claimed to have suffered by the new channel being dug and the embankment made by dirt piled on the side thereof in such a way that the water was impounded and held on their land and caused to stand under the houses and on the premises, thereby depreciating the value of said property for residential purposes. Appellant filed a number of special exceptions and a general denial. The cause was tried to a jury, submitted on special issues, and resulted in judgment being rendered for appellees for $2,000.

Appellant by its first assignment of error contends that the trial court committed error in overruling its general demurrer to appellees' petition, by reason of the fact that said petition did not allege that a claim for damage had been filed with the city secretary, as required by article 3, § 3 of the City Charter, which reads: "The City of Waco shall not be held responsible on account of any claim for damage to any person or property, unless the person making such complaint or claiming such damages shall, within thirty days after the time at which it is claimed such damages were inflicted upon such person or property, file with the City Secretary a true statement under oath as to the nature and character of such damages or injuries, the extent of same and place where same happened, the circumstances under which happened, the conditions causing same, with a detailed statement of each item of damages and the amount thereof."

We overrule this assignment. The above provision is contained in many of the charters of the cities in Texas, and has been upheld by our courts in so far as it affects suits for personal injuries. It seems to be well settled that where a city itself has damaged real estate, it is not necessary for the owner thereof to file any claim for said damages with the city as a condition precedent to recover therefor. Article 1, § 17, State Constitution; City of Fort Worth v. Ashley (Tex. Civ. App.) 197 S. W. 307; City of Houston v. Kleinecke (Tex. Civ. App.) 26 S. W. 250; City of Dallas v. Shows (Tex. Com. App.) 212 S. W. 633.

Appellant assigns error to the action of the trial court in overruling its special exceptions to appellees' pleadings with reference to the damage it had done to the property in destroying same as their home, and with reference to the depreciation occasioned by a public swimming hole being created by the digging of said channel near his residence. We do not think there was any error in the court's action with reference thereto. The measure of damage depended in a large measure upon the use the property was being put to whether residential or business, whether vacant or occupied property, and, in arriving at the measure of damage, it was proper for the jury to consider these matters. If, however, it could be said that any of the exceptions urged by appellant should have been sustained, it does not appear that appellant has suffered any damage by reason thereof, and same would not cause a reversal. Golden v. Odiorne, 112 Tex. 544, 249 S. W. 822.

The trial court asked the jury, first, whether the city caused the new channel of Waco creek to be dug, and, second, whether it caused the embankment to be erected on the side of...