Ex Parte Foster

• Decision Date: 30 May 1945
• Docket Number: No. A-536.,A-536.
• Citation: 188 S.W.2d 382
• Parties: Ex parte FOSTER.
• Court: Texas Supreme Court

Page 382

188 S.W.2d 382

Ex parte FOSTER.

No. A-536.

Supreme Court of Texas.

May 30, 1945.

Rehearing Denied July 11, 1945.

Original ex parte proceeding by Harry K. Foster for a writ of habeas corpus to obtain relator's release from the custody of the sheriff of Dallas County on relator's adjudication to be in contempt of court for violating a permanent injunction.

Order granting temporary writ of habeas corpus set aside and relator remanded to custody of sheriff.

Hughes & Munroe and P. P. Ballowe, all of Dallas, for relator.

Donald L. Case, J. T. Suggs, M. E. Clinton, and Robertson, Leachman, Payne, Gardere & Lancaster, all of Dallas, for Texas & P. Ry. Co.

SHARP, Justice.

Relator was committed to the custody of the Sheriff of Dallas County because he was adjudged to be in contempt of the 101st Judicial District Court of Dallas County for violating a permanent injunction issued by that court in Cause No. 79272-E, styled The Texas & Pacific Railway Company v. Dallas County et al. He filed a petition for writ of habeas corpus with this Court, and was released under bond pending the final decision of his petition.

The following is a summary of the facts from which relator's commitment eventuated: The Texas & Pacific Railway Company and relator each own a tract of land in Dallas County, near the town of Mesquite, and a county road, known as Gross Road, separates the two tracts. In 1910 the Railway Company constructed a dam on its property, which created a lake thereon, referred to as Rady Lake, and some of its locomotives received water at the lake. Rady Lake is supplied by surface water which flows in a draw or natural drain which runs through relator's land and across Gross Road. After a heavy rainfall the surface water would flood the road and make it impassable for highway traffic. In 1944 Dallas County raised the grade of Gross Road seven or eight feet, and for that purpose took approximately 6,000 cubic yards of dirt from relator's land. A concrete box culvert with wing walls was constructed in place of an old wooden bridge. A concrete spillway or drop inlet seven feet in height, measured from the floor of the culvert, was built between the wing walls. This had the effect of impounding water on relator's property. The testimony shows that the spillway was constructed by the County at the request of relator and at his expense. After the culvert and spillway were completed, but before the road work was finished, the Railway Company filed Suit No. 79292-E against the County Judge, the County Commissioners, and the County Engineer of Dallas County, to enjoin them from constructing the culvert in such manner as to obstruct the flow of surface waters under the culvert and into Rady Lake. It alleged that the construction of the spillway would prevent any water from flowing down the draw into Rady Lake until sufficient water had backed up against the north side of the road and reached a height sufficient to pass over the wall; that in dry seasons, or when the rainfall is scanty, no water will flow into Rady Lake over that wall; and that the purpose of constructing the spillway in the culvert was not to further a public purpose, but was for the sole purpose of creating a lake or pond upon the private property of relator.

Relator was not a party to that suit. A temporary restraining order was granted ex parte against Dallas County, and was continued in force until March 8, 1944, at which time the county officials and the Texas & Pacific Railway Company entered into an agreed judgment, whereby the County of Dallas and the officials named in the suit agreed to reduce the height of the drop inlet from 7 to 4½ feet and were mandatorily ordered to do so forthwith. They were further by agreement perpetually enjoined from raising the drop inlet above 4½ feet from the floor thereof. After agreeing to such injunction, the County officials caused the spillway to be reduced in keeping with the mandatory order of the court.

Relator admits that thereafter he caused the height of the spillway to be raised from 4½ feet to 7 feet. Upon motion of counsel for the Railway Company, and after a full hearing, the Honorable W. M. Cramer, Judge of the said court, on March 26, 1945, entered the following order, after reciting the facts in the order of March 9, 1944, and concluded by saying:

"* * * the court having heard the pleadings, evidence and argument of counsel is of the opinion that said Harry K. Foster is bound by the terms of the final decree and injunction entered herein on March 9, 1944 and that he is in contempt of Court in violating its terms as aforesaid.

"Now, therefore, on this March 26th 1945, it is ordered, adjudged and decreed that said Harry K. Foster is guilty of contempt of this Court in raising or causing to be raised said concrete spillway or drop inlet to a height of more than four and one-half feet (4½'), towit: seven feet (7') measured from the floor of said concrete culvert, and that said Harry K. Foster be imprisoned until he shall cause said concrete spillway or drop inlet to be reduced to an elevation of four and one-half feet (4½') measured from the floor of said concrete culvert. Let commitment issue to the Sheriff of this County reciting generally the proceedings herein and accompanied by a certified copy of this judgment to be served upon said Harry K. Foster and as further evidence of the said Sheriff's authority, and further that said Harry K. Foster pay all costs of this proceeding for which let execution issue."

Relator filed a petition for writ of habeas corpus with this Court, and was released under bond pending final decision of his petition. Relator alleged that the judgment of contempt of court is void because, (1) he was not a party to Cause No. 79292-E, and (2) the drop inlet or spillway was situated on his property and not upon the county highway, and that under the provisions of Article 7500a, Vernon's Civil Statutes, he has the legal right to construct a dam on his own property and to impound surface waters thereon. Not being a nominal party to the injunction proceedings in Cause No. 79292-E, relator ordinarily would not be bound by its terms, and could not legally be convicted for violating its terms. Counsel for the Railway Company who filed motion for contempt contends that although relator was not named a party to the injunction proceedings, he was a party in interest and had actual knowledge of the proceedings and the final judgment entered therein, and that he in person and by and through his attorney participated in all the proceedings had in said suit, and approved the judgment rendered by the court upon the agreement of the parties, and was therefore "in active concert and participated with" the named defendants, and is bound by the terms of the restraining order.

The testimony disclosed that relator had a vital interest in the subject matter and outcome of the injunction proceedings, and that the spillway was constructed at his request and expense and for his benefit, and not for the benefit of the County or for any public purpose. Relator testified that he told one of the Commissioners of Dallas County that he wanted to build a dam to impound surface water and make a lake on his property, and that the Commissioner showed him something that he liked better; that the Commissioner agreed to build a concrete culvert with a seven foot wall or dam in its north end, the end next to relator's property, if relator would agree to pay a "little extra" and give the County all the dirt it needed to raise the grade of the road. He further testified that he knew about the injunction suit and employed Mr Kucera as his attorney to investigate the controversy and to see...