Dallas County Flood Control District v. Benson

• Court: Texas Supreme Court
• Writing for the Court: SMITH
• Citation: Dallas County Flood Control District v. Benson, 157 Tex. 617, 306 S.W.2d 350 (Tex. 1957)
• Decision Date: 23 October 1957
• Docket Number: No. A-6358,A-6358
• Parties: DALLAS COUNTY FLOOD CONTROL DISTRICT et al., Petitioners, v. C. C. BENSON et al., Respondents.

Page 350

306 S.W.2d 350

157 Tex. 617

DALLAS COUNTY FLOOD CONTROL DISTRICT et al., Petitioners, v. C. C. BENSON et al., Respondents.

No. A-6358.

Supreme Court of Texas.

Oct. 23, 1957.

Rehearing Denied Nov. 20, 1957.

Scurry, Scurry, Pace & Wood, Dallas, for dallas County Flood Control dist.

Bowyer, Thomas, Crozier & Harris, Dallas, for City & County of Dallas Levee Improvement Dist.

Thompson, Knight, Wright & Simmons, Richard E. Gray and David M. Kendall, Jr., Dallas, for Dallas County Levee Improvement Dist. No. 5.

Roland Boyd, Edward J. Veigel, McKinney, for C. C. Benson et al.

SMITH, Justice.

Respondents brought this suit against the petitioners, their Directors, Supervisors, and Managers, for damages to crops on land in Dallas County, Texas. The damages were alleged to have occurred as the result of spraying operations undertaken by the petitioner, Dallas County Flood Control District, for the purpose of clearing the floodway between the levees of City and County of Dallas Levee Improvement District, and Dallas County Levee Improvement District No. 5. For convenience, the petitioners will hereafter be designated as defendants, and the respondents as plaintiffs. Defendants filed separate motions for summary judgment. The trial court granted all the motions of the defendants and the Court of Civil Appeals has affirmed such action as to all individual defendants, but reversed and remanded the cause for trial as between the plaintiffs and defendant-districts. The plaintiffs have not applied for writ of error, hence the judgment of the Court of Civil Appeals as affecting the individual defendants has become fin. We are concerned only with the question of whether or not the summary judgment was proper as it affects the cause of action plead by the plaintiffs against the defendant-districts.

Plaintiffs' petition in the trial court presented two theories of recovery, either of which, according to their contention, would present fact issues rendering necessary a trial by the trier of the facts. The plaintiffs in oral argument admitted abandonment of the right of recovery on the theory that the damage complained of was the direct and proximate result of the negligence of the defendants, leaving for our consideration the remaining theory.

The Court of Civil Appeals has sustained this theory which, in substance, is that the damage to the cotton crops of plaintiffs constituted the taking or damaging of their property for a public use within the meaning of Article I, Section 17, of the Constitution, Vernon's Ann.St. which prohibits the taking, damaging, or destroying of one's property for public use without payment of adequate compensation therefor.

The defendants contend that the damage resulting from the spraying operations was not necessarily a consequential result of the act of clearing weeds and willows from the floodway, and did not constitute the taking or damaging of property within the meaning of Article I, Section 17, supra.

We hold that the question thus presented has been definitely settled in favor of the defendants in the case of Texas Highway Department v. Weber, 147 Tex. 628; 219 S.W.2d 70. In that case the State of Texas was the defendant. In the case at bar, the districts involved are each a governmental agency of the state, and in taking action for the purpose of cleaning the floodway of weeds and willows, each was performing a governmental function. Bennett v. Brown County Water Improvement District, 153 Tex. 599, 272 S.W.2d 498. In the Weber case, supra, the employees of the Texas Highway Department, while engaged in the maintenance of the highway, burned the grass along its shoulders, and the fire spread to the hay crop growing on land adjacent to the highway, thereby destroying a substantial portion of Weber's hay. This Court denied recovery holding that (147 Tex. 628, 219 S.W.2d 71):

'Under the facts of this case, the cause of action is simply one sounding in tort. The Highway Department employees were engaged in the...