Fayette County v. Krause

• Decision Date: 10 March 1903
• Citation: 73 S.W. 51
• Parties: FAYETTE COUNTY v. KRAUSE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

73 S.W. 51

FAYETTE COUNTY v. KRAUSE et al.^*

Court of Civil Appeals of Texas.

March 10, 1903.

Appeal from District Court, Fayette County; L. W. Moore, Judge.

Suit by Fayette county against C. D. Krause and others. Judgment for defendants. Plaintiff appeals. Reversed.

Robson & Duncan, for appellant. Brown, Lane & Garwood and Walters, Lane & Lenert, for appellees.

PLEASANTS, J.

In 1886 the county of Fayette constructed a sewer from its courthouse and jail in the city of La Grange along Washington street, in said city, to the Colorado river. Appellees are the owners of business property in La Grange adjacent to Washington street, upon which they have constructed a private system of sewerage, and are claiming the right to connect same with the sewer owned by appellant. This suit was brought by appellant to enjoin the appellees from making such connection, and from injuring or using the sewer of appellant, without its consent. The petition alleges that defendants had wrongfully, and in open disregard of plaintiff's rights, and without its consent, and with intent to appropriate the same to their own use, dug away the earth therefrom, and had broken and injured plaintiff's sewer. The defendants answered by general denial and plea of not guilty, and specially pleaded "that they had the right to connect their private sewer with, and make use of, appellant's sewer, by virtue of an agreement made and entered into at the time of the construction of appellant's sewer by and between the city of La Grange, then an incorporated city under the laws of Texas, and Fayette county [the plaintiff], whereby the city of La Grange, and the citizens of said city, in consideration of the privilege granted appellant to lay its sewer in and through the streets of said city, have the right, whenever they see fit, to connect their sewers with and use appellant's sewer, it having been ascertained that its capacity would be more than sufficient to accommodate the entire population of the city of La Grange, and that the increased use would be of benefit to the same and to all parties concerned, that, upon such understanding and agreement, appellant's sewer was constructed; and that the town of La Grange, by reason thereof, now has the right to connect a system of sewerage of its own with that of appellant, and that each individual citizen in the town of La Grange, if he sees fit to incur the expense necessary to make connection therewith, has such right; that appellees are citizens of the town of La Grange, and owners of property located on block 23 which abuts upon Washington street in said city, the street in which appellant's sewer is laid; that appellees not only have the right to construct, operate, and connect the sewer complained of by appellant by reason of the said agreement, but that they have the special right to do so, accorded them by plaintiff, acting through its commissioners' court, at a session of said court held in the courthouse of La Grange during the month of June, 1900."

The cause was tried by the court below without a jury, and judgment rendered in favor of the defendants, from which judgment the county of Fayette prosecutes this appeal.

The trial court filed the following findings of fact:

"(1) I find that the courthouse of Fayette county, Texas, is situated on the public square of the city of La Grange, in said Fayette county, Texas; that the county jail of said county is situated on block No. 33 of said city, which abuts on the south side of the public square; and that the defendants own property on block No. 23 of said city, which abuts on the east side of Washington street and the public square of said city.

"(2) I find that on the 16th day of May, 1885, the commissioners' court of Fayette county, Texas, by an order duly entered upon the minutes of said court, appointed a committee, consisting of W. H. Ledbetter, W. W. Little, R. T. Bradshaw, H. Studeman, W. M. Chandler, and Joseph Ehlinger, to ascertain the advisability and necessity of building an underground sewer from the county jail to the Colorado river, for the purpose of draining the excrement of the jail, to ascertain the probable cost, and report to the commissioners' court. They reported at the June term, 1885, that the sewer was necessary and should be constructed, and that it should be laid on the east side of Main street to the river, with eight-inch pipe; the distance being 3,600 feet. This report was adopted by the commissioners' court, and W. W. Little, R. T. Bradshaw, M. J. Connell, W. H. Ledbetter, W. M. Chandler, and Joseph Ehlinger were, by an order duly entered of record, appointed a committee to procure the necessary material and to construct said underground sewer aforesaid. Said committee was invested only with the power to contract for and purchase, in the name of the county, all necessary fixtures and material for all necessary labor for the construction and completion of a sewer from the county jail to the river, and on completion of the sewer to make their report, accompanied by an account of the material and labor expended. This committee found it impossible to construct the sewer on Main street, because they could not obtain permission to cross the property of one of the citizens of La Grange, which was necessary if the sewer was built on that route, and after consulting with a capable engineer (Mr. Lynch), and in order to secure the right of way and permission of citizens of the town of La Grange to lay sewer, determined that it would be more convenient for the citizens of the town that the sewer be built on Washington street, which is one street west of Main street, and is more centrally located in the town, and that, instead of using eight-inch pipe, they would use ten-inch pipe. At that time it was understood and mutually agreed by the then commissioners' court and the town of La Grange, but no order to that effect by either the city of La Grange or commissioners was ever entered of record, [or] any vote taken by either, that said sewer should be built down Washington street out of ten-inch pipe, so that citizens who wished to do so, including those on Washington street, might join their private sewers thereto—the said Lynch advising this course, as making the system more efficient, without injury to the county; and accordingly the said sewer was built by Fayette county on the changed route, and according to the changed plan. The cost of the construction of this sewer, as built, was about $2,500, and its length was about 4,000 feet. There was no order entered of record by the commissioners' court adopting these changes, but the same was done by the concurrent agreement of said commissioners' court and the town council of La Grange, acting through the said committee...