Haas v. Choussard
Decision Date | 01 January 1856 |
Citation | 17 Tex. 588 |
Parties | G. L. HAAS AND ANOTHER v. PETER CHOUSSARD. |
Court | Texas Supreme Court |
An action lies by one riparian proprietor against another for damages incurred by the former by reason of back water caused by a dam erected by the latter on his own land, except where the latter has acquired the right so to back the water by purchase from the former or some one under whom he claims, or by prescription.
It would seem that ten years' uninterrupted enjoyment of the use of a dam, whereby the water is backed upon the land of other proprietors, would give a right by prescription to maintain the dam ever afterwards at the height at which it had been kept throughout the period of ten years.
Whether an action for throwing back water will lie for merely nominal damages, where there has been no actual injury, is not free from doubt, though supported by American authorities. [This probably means where, from the nature of the case, if there be any such in law, there could not be any injury; else it would seem that an action would lie, if for no other reason, to prevent the acquisition of a right by prescription.--REPS.]
Where the plaintiff, among other damages from the back water from defendants' dam, alleged that the dam caused the water to set back, become stagnant and putrid upon and along the plaintiff's premises, creating a grievous nuisance, and endangering the health and lives of his family; and the defendants permitted evidence to go to the jury without objection, showing the former uses of the water, and that it had become unfit for use, and the probable damages occasioned thereby; on appeal by the defendants, the court said it would be unreasonable that the whole judgment should be reversed (other grounds for damages being proved), although the charge of the court may have been more precisely adapted to the evidence than to the pleadings of the plaintiff.
Appeal from Bexar. Tried below before the Hon. Thomas J. Devine.
Suit by appellee against appellants for damages done the former by reason of a mill dam which the latter had erected immediately below him on the Medina river. The petition claimed damages and abatement of the nuisance. Both premises were in the town of Castroville. The proceedings are stated as fully in the opinion as is necessary to show the points of law decided. There was no question of prescription involved. The plaintiff had a verdict for $620, upon which judgment for same was entered; but it did not appear that the plaintiff insisted on a judgment for the removal of the nuisance.
Paschals & Stribling, for appellants.
C. Upson, for appellee.
There can be no doubt but that, upon the evidence, the plaintiff, Choussard, was entitled to recover for actual damage. He was the owner of lands on the river which were partially overflowed by the back water from the dam of the defendants below, inflicting other injuries as alleged and attempted to be proven by the plaintiff. He had a right to the use of the water adjacent to his lots, as it flowed in its natural channel; a right inherent to and inseparably connected with the land itself. (Angell on Water Courses, sec. 90.) The doctrine on the subject of rights of proprietors of lands on the banks of a stream to the use of its waters is condensed from the authorities, and expressed with equal force and precision, on page 439, Kent's Comm., vol. 3, as follows, viz.: Ten...
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Adjudication of the Water Rights of Upper Guadalupe Segment of Guadalupe River Basin, In re
...rights and also the law of appropriation of waters. Texas judicially adopted the riparian rights system, at least by 1856. Haas v. Choussard, 17 Tex. 588 (1856); see also Fleming v. Davis, 37 Tex. 173, 201 (1872). During the same general period of time, however, the Texas Legislature treate......
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Gibson v. Carroll
...cases in Texas which hold that riparian rights may be acquired by prescription, which is based upon the presumption of a grant. Haas v. Choussard, 17 Tex. 588; Baker v. Brown, 55 Tex. 381; Rhodes v. Whitehead, 27 Tex. 316, 84 Am. Dec. 631; Irrigation Co. v. Vivian, 74 Tex. 173, 11 S. W. 107......
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Barstow v. State
...of use is ten years by analogy to Tex.Civ.Prac. & Rem.Code Ann. §§ 16.021, 16.026 (1986) and predecessor statutes. 1 See Haas v. Choussard, 17 Tex. 588, 591 (1856); Wiegand v. Riojas, 547 S.W.2d 287, 289 (Tex.Civ.App.1977, no writ); Childress, Does Public User Give Rise to a Prescriptive Ea......
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San Antonio River Authority v. Lewis
...left to flow in its natural channel, without alteration or diversion. A fundamental maxim in the law of watercourses.' See also Haas v. Choussard, 17 Tex. 588. The Code law of Spain as expressed in Las Siete Partidas gives validity to our former There are express provisions in Law Siete Par......