City of Waco v. Roberts

• Decision Date: 06 April 1932
• Docket Number: No. 5392.,5392.
• Citation: 48 S.W.2d 577
• Parties: CITY OF WACO v. ROBERTS et al.
• Court: Texas Supreme Court

Page 577

48 S.W.2d 577

CITY OF WACO v. ROBERTS et al.

No. 5392.

Supreme Court of Texas.

April 6, 1932.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Action by H. D. Roberts and others against the City of Waco. To review the judgment of the Court of Civil Appeals [12 S.W.(2d) 263] affirming the judgment of the trial court for plaintiffs, defendant brings error.

Affirmed.

John McGlasson, City Atty., and George M. Morrow, Asst. City Atty., both of Waco, for plaintiff in error.

Bryan & Maxwell, of Waco, for defendants in error.

CURETON, C. J.

The defendants in error owned a tract of land in the city of Waco, about 118 by 200 feet in size, approximately two blocks from Waco creek. There were three houses on the property, one of which was occupied by defendants in error as their residence. Plaintiff in error dug a channel which changed the course of the creek, causing it to run near the property above described. The defendants in error then instituted suit to recover compensation for the permanent damage which they claimed to have suffered by reason of the new channel and an embankment on the side thereof erected in such a way that water was impounded and held on their land and caused to stand under their houses and on their premises. In the petition upon which the case was tried, the defendants in error in part alleged:

"That at the time of the purchase of said property Waco Creek in its natural flow intersected South 10th Street about a block from plaintiff's property, and then said creek turned to a southeasterly direction and meanders in an easterly and northerly direction about two blocks from plaintiff's property, making a horse-shoe south of plaintiff's property, and then running back to a point northeast of where said creek intersects South 10th Street and then on its course to the river. * * *

"That in the fall of 1923 or spring of 1924 or both times, the City of Waco, through its servants, agents and employees, conceived the idea of running, and did run, and change the channel of said creek by cutting a deep ditch from where the same intersects South 10th Street in a northeasterly direction to the place where said creek makes its bend from a northerly direction to an easterly direction, which said ditch has been excavated by the defendant to a depth of from 10 to 15 feet and a width of some thirty or forty feet, and all of the dirt excavated from said land has been piled upon its adjacent sides; that the defendant through its said servants, agents and employees, with an utter disregard for this plaintiff's property, and the use to which he is making the same as a home with his family, the said City did pile said dirt to a depth of one foot to three feet on the south side of his said property, thereby making a complete dam for any waters that fall north of plaintiff's property, without providing necessary drainage to take care of said water. * * *

"That the defendant through its servants and agents has piled up and erected a dump on the north and west side of the ditch constructed by it, and that all the water that flows on the north and west side of said embankment for a distance of one-half mile or more, drains back in its natural flow towards said creek; that without a large rainfall and without overflow conditions, but just ordinary rain, and when said creek is not more than two or three feet in water, by reason of said embankment, the water accumulates and stands over his entire property, under his house, in his lot, under his barn and cow-shed; that after each rain after such construction, the water so accumulated has been and remained on his said premises, and that the drain pipe placed under said embankment by the defendant herein is wholly insufficient to relieve said situation, and said drain pipe is improperly constructed in that it is placed on ground higher than his said property, by reason of which said location of said drain pipe, the waters accumulated on plaintiff's property, and the land lying north of plaintiff's property will not drain off of plaintiff's property but remains thereon and becomes a permanent nuisance and interferes with the enjoyment of said property, which is plaintiff's home, occupied by his wife and family, and has been so occupied for a period of years. * * *

"That in case of high water in Waco Creek, and especially that portion here recently cut by the defendant, and which passes just south of plaintiff's property line, said water will at times of overflow pass through and over plaintiff's property by reason of the fact that a sufficient embankment and protection has not been furnished or provided on said recently cut ditch, just west of plaintiff's property; that in case of high waters the same will form a bed in and across plaintiff's property by reason of the fact that the land between 10th Street and 9th Street, and the land on which plaintiff's home is builded, and which he is now occupying as a residence with his family, is lower than the property on either side of said creek at 9th Street, and that the waters coming down said creek, and where the same intersects the newly made ditch dug and constructed by the defendant, will necessarily pass in, over and through plaintiff's property, all of which said acts of said defendant in the digging of said ditch or permitting same to be dug in the manner herein alleged is negligence and has contributed to the injuries sustained by him."

The defendants in error further alleged that, since the negligent constructions complained of by them, they had been deprived of the rental value of their houses, because of the overflowing of the premises, standing of the water, etc. In paragraph 8 of the petition they declared: "Plaintiff further alleges that since the construction of said ditch, embankment, etc. his said property, including his home and rent houses have been continuously inundated by water, caused by the negligent acts of defendant as herein alleged, and that by reason of the construction of said ditch, embankment, etc. his said property will continue to be flooded and inundated by rains and overflows; that said water cannot escape off of his property by reason of said ditch and embankment, all of which was occasioned by the negligent acts of the defendant, and said defendant knew at said time when it constructed said ditch and embankment that it would destroy the value of plaintiff's property as herein alleged."

The defendants in error further pleaded that in addition to the loss in value of their property, occasioned by the acts of the city, their right to occupy their home had been materially interfered with; that they will be either required to vacate their home and abandon it and seek other quarters, or will be compelled to occupy the premises surrounded by a pond, which will be injurious to their health, etc.

Trial was by a jury, which found in favor of the defendants in error on all issues. The city appealed the case, and the Court of Civil Appeals affirmed the judgment of the trial court. 12 S.W.(2d) 263.

Counsel for the city of Waco contend that a general demurrer to the plaintiff's petition should have been sustained, because the petition failed to allege that the claim made the basis of the suit was presented to the city council, as required by the city charter. The notice provision of the charter of the city of Waco reads as follows: "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 damage 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 the same, and the place where same happened, and the circumstances under which happened, the condition causing same, with a detailed statement of each item of damages and the amount thereof."

The Court of Civil Appeals overruled the contention of the city, and with that ruling we are in accord. That court quite correctly said that provisions of this character have been upheld in cases to which they are applicable, but they have no application to cases of the character before us.

Under the allegations of the petition and the findings of the jury, what the city has done amounts to a taking of the property of the defendants in error without compliance with the mandatory provisions of section 17 of article 1 of the Constitution, which provides that: "No person's property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person; and when taken, except for the use of the state, such compensation shall be first made, or secured...