Cody v. Lowry
| Decision Date | 03 January 1906 |
| Citation | 91 S.W. 1109 |
| Parties | CODY v. LOWRY et al. |
| Court | Texas Court of Appeals |
Appeal from El Paso County Court; Jos. U. Sweeney, Judge.
Action by M. F. Cody against J. W. Lowry and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.
McBroom & Watson and M. W. Stanton, for appellant. Maury Kemp and Seymour Thurmond, for appellee.
Appellant sought to recover damages arising from water being turned on land belonging to him by appellees, whereby it was flooded and his property injured and destroyed. After appellant introduced his evidence, upon their motion, a verdict was instructed for appellees.
It appears from the facts that appellant owned about 9 acres of land, bounded on the north by a 16-acre tract belonging to J. W. Lowry, on the south by a 40-acre tract belonging to Lowry, on the east by sand hills, and on the west by an irrigation ditch known as the "Acequia Pilar." The land of appellant was lower than either of Lowry's tracts. The ditch was one from which land bordering on it was irrigated and the irrigation was accomplished by making an opening in the ditch and allowing the water to run out on the land of the person making the opening, and it was his duty to throw up a sufficient embankment around his premises so as to prevent the water from running from his land to that of adjoining landowners. This precaution was not taken by Lowry and, during the year 1903, he twice opened the ditch on the border of his 16-acre tract and twice on the 40-acre tract and four times flooded the land of appellant and injured his property. The openings were made on Lowry's land each time by him, or his tenant Cooper, and when Lowry was requested by appellant to stop the flow of the water, he said he could not do it, although he knew it was flooding the land and actually hunted wild ducks in a pond formed by the waters from the ditch on appellant's land. Appellant tried to protect his land by building a border of soil about it, but the water came so fast that it defeated his purpose. He filled up one of the openings on the 40-acre tract. Under the foregoing state of facts the county judge, at the instance of appellees, instructed a verdict for them. In this the court erred and we cannot permit the verdict to stand.
Appellees had no right to turn water on their land and flood the field of appellant and destroy his trees, vines, and vegetables and injure his land, and they cannot claim exemption from the payment of damages for their illegal act, because appellant did not invade their premises and do what Lowry said he could not or would not do. He did not give permission...
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...torts may properly be joined in the same suit, even though they be distinct. Wallis v. Walker, 73 Tex. 8, 11 S. W. 123; Cody v. Lowry (Tex. Civ. App.) 91 S. W. 1109; Carter v. Wallace, 2 Tex. 206; Hamilton v. Ward, 4 Tex. 356; Jackson v. Missouri, K. & T. Ry. Co. (Tex. Civ. App.) 78 S. W. H......
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