Ft. Worth Improvement Dist. No. 1 v. City of Ft. Worth

• Decision Date: 27 June 1913
• Citation: 158 S.W. 164
• Court: Texas Supreme Court
• Parties: FT. WORTH IMPROVEMENT DIST. NO. 1 v. CITY OF FT. WORTH.

Page 164

158 S.W. 164

FT. WORTH IMPROVEMENT DIST. NO. 1 v. CITY OF FT. WORTH.

Supreme Court of Texas.

June 27, 1913.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Suit by the City of Ft. Worth against the Ft. Worth Improvement District No. 1. From an order granting a temporary injunction, defendant appeals. On certified questions from the Court of Civil Appeals.

McLean, Scott & McLean, of Ft. Worth, for appellant. Slay, Simon & Wynn, of Ft. Worth, for appellee.

PHILLIPS, J.

The certificate of the Court of Civil Appeals of the Second District is as follows:

"The Ft. Worth improvement district No. 1, in pursuance of title 47, Revised Statutes of Texas 1911, has constructed certain levees which according to allegations of the complainant the city of Ft. Worth threaten to destroy certain municipal property, and from a judgment of the district court enjoining it in the maintenance of such levees the improvement district appeals.

"As preliminary to the questions of practice certified the judgment in its entirety is here set out:

"`This day came the parties by their attorneys and submitted the matter in controversy as well of fact as of law to the court, and the evidence and argument of counsel having been heard, and fully understood, it is considered by the court that the equities of the case are with the plaintiff, and,

"`It is therefore adjudged, decreed, and ordered by the court that a temporary writ of injunction issue, restraining and enjoining the defendant, its agents or employés, from filling the gap in the levee now being constructed by the defendant as said gap now exists at the intersection of said levee with North Main street, in the city of Ft. Worth, and,

"`It is further adjudged, decreed, and ordered by the court that a mandatory writ of injunction issue, commanding and directing the defendant to take immediate steps to protect the two waterworks plants of plaintiff, to wit, the old pumping station and the Holley plant, by adequate dykes or levees within 60 days from the date hereof, but, in the event defendant refuses to take such steps, said defendant is commanded and directed to tear out and remove the following parts of the levee already constructed by it, to wit:

"`Beginning at a point on the levee along the Clear fork and approximately 300 feet west of the Frisco tracks, and at the extreme southwest end of said levees, the defendant is directed to tear out and remove said levee and dirt work level with the surrounding ground and territory from the aforesaid point in an easterly northeasterly direction for a distance of 900 feet. And, beginning at a point 600 feet upstream from a point in said levee opposite the Holly plant, the defendant is directed and commanded to level said levee and embankment to the ground for a distance of 200 feet upstream from the aforesaid point of beginning.

"`The clerk of this court is hereby directed to issue a writ of injunction in accordance herewith.

"`To which action and judgment of the court the defendant then and there in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Second Supreme Judicial District.'

"The improvement district duly filed its appeal bond in proper form on February 5, 1913, and on the same day filed the transcript of the record in this court. The transcript contains neither a motion for new trial below, nor an assignment of errors, nor are any briefs filed by the appellant in this court. The following agreement as to certain facts involved is contained in the statement of facts, to wit:

"`That the city of Ft. Worth is a municipal corporation, and is now and was long prior to the creation of the Ft. Worth improvement district No. 1 a riparian owner of certain lands upon and along the Trinity river, and that it has for approximately 25 years maintained on such land two pumping stations, to wit; one on the Clear fork near the confluence of that with the West fork, known as the old pumping station, and one on the Clear fork approximately one mile from the old station, known as the Holley plant, as indicated by the letters X and Y on map attached to and made a part of plaintiff's petition, and said plants are not within the area or lines of the improvement district which embraces about 3,000 acres. That heretofore the highest floods have not flooded either of said stations, but during the flood of 1908 the water came within about eight inches of the door sills of the Holley plant, and up to the door sill of the old pumping station and a few inches above, it being necessary to put sacks of sand in the door in order to keep the water out of said plant at said time, but that by reason of the existence of the levee and as a result of the construction of the same each of said plants will now be submerged approximately five feet in times of ordinary flood, and that, as direct and proximate result of such flood, the city and its inhabitants by reason of the destruction of machinery that will be damaged and by reason of being unable to supply water for domestic purposes and for fire protection will suffer irreparable injury.

"`That the defendant Ft. Worth improvement district No. 1 has been organized and created in strict conformity and compliance with the terms and conditions of the statute providing for same.

"`That in pursuance of its purposes it has acquired a right of way, and constructed almost to completion a levee along the banks of said West and Clear Forks of the Trinity river. By the Holley plant the levee is constructed on the west bank opposite to plaintiff's property. That the old pumping station stands on the Clear fork of the Trinity river near the confluence of that stream and the West fork and the levee is constructed on the opposite side of the river.

"`That before the construction of said levee these flood waters, which will now be confined within the levee, spread out over the valley in one continuous stream of water of approximately one mile in width with a depth of approximately two to five feet, and that said waters found their way back into the main channel farther down the stream. That by reason of the construction of said levee the Ft. Worth improvement district has heretofore levied a tax of $1.75 upon the $100 valuation, as said property is assessed for state and county taxes, said assessment being the limit allowed by law for such purposes. There are from 300 to 500 persons owning property within this levee district.

"`The cost of building this levee was approximately $250,000, and the length of same is approximately 11 miles.

"`The height of the levee is from 8 to 20 feet; the base is from 46 to 106 feet; the levee is 6 feet wide on top, this width being uniform.

"`It is agreed that the levee is constructed at least 5 feet above the high-water mark of 1908.'

"We find the facts embraced within this agreement to be true, and further find that the evidence justifies the judgment awarding a temporary writ of injunction if the rules governing the issuance of such writs applicable generally to individuals shall be held to be applicable to drainage districts under the statute like appellant. Supplementing our statement, if necessary, we beg to refer to a statement of the pleadings contained in the transcript and also to the statement of facts which accompanies it. We beg to certify to your honors for decision:

"First. Whether or not this appeal is from an order granting a `temporary injunction' within articles 4644 and 4645, Revised Statutes 1911, authorizing such appeals and dispensing with the necessity for filing briefs in the Court of Civil Appeals, or is the judgment attempted to be appealed from a final judgment in the cause, and the appeal, therefore, governed by the general rule with respect to filing briefs?

"Second. If the appeal is authorized under the articles of the statute last above referred to, then may the same be heard in this court in the absence of a motion for new trial (under Rule 71a for the guidance of district and county courts), and in the absence of assignments of error?

"Third. Do the facts stated justify the judgment of the district court; the other questions presented being answered in a way to make this material?"

In answer to the first question, it is our opinion that the judgment is not a final one, and the appeal in the case may be properly characterized as from an order granting a temporary injunction within the provisions of article 4644, Revised Statutes of 1911. A judgment is final only when it leaves nothing to be further litigated in the case. Linn v. Arambould, 55 Tex. 611; T. & P. Ry. Co. v. Ft. Worth St. Ry. Co., 75 Tex. 82, 12 S. W. 977. While this judgment in its provision for the mandatory injunction grants such relief as would not ordinarily be extended except as the result of a trial upon the merits and in this feature has the aspect of finality, yet in respect to "filling the gap in the levee now being constructed by the defendant as said gap now exists at the intersection of said levee with North Main street in the city of Ft. Worth," which was apparently essential to the completion of the levee, it decrees only a temporary injunction. It thus appears that a necessarily important issue in the case—that is, whether this work might ultimately be done by the defendant toward the completion of the levee—is not finally disposed of. By the mandatory injunction provided for the defendant is commanded to protect the waterworks plant of the plaintiff by the erection of adequate dykes or levees within 60 days from the date of the order; otherwise it is directed to remove certain parts of the levee as constructed. But the judgment is not open to the construction that the defendant should be permanently enjoined from this work of completion in the event it performed that part of the mandatory injunction requiring that it protect the plaintiff's waterworks plant by adequate dykes or levees....