Hagins v. Wilson

• Decision Date: 26 March 1924
• Docket Number: (No. 2251.)
• Citation: 262 S.W. 770
• Parties: HAGINS et al. v. WILSON et al.
• Court: Texas Court of Appeals

262 S.W. 770

HAGINS et al. v. WILSON et al.

(No. 2251.)

Court of Civil Appeals of Texas. Amarillo.

March 26, 1924.

Rehearing Denied May 21, 1924.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dickens County; J. H. Milam, Judge.

Suit by A. J. Hagins and another against W. T. Wilson and another. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

B. G. Worswick, of Dickens, and Stinson, Coombes & Brooks, of Abilene, for appellants.

W. D. Wilson, of Spur, and Underwood, Jackson & Johnson, of Amarillo, for appellees.

HALL, C. J.

A. J. and B. J. Hagins, appellants, filed this suit against W. T. Wilson and Walter Carlisle, to enjoin them from diverting the flood waters of Duck creek, and to recover damages resulting to plaintiffs' lands by reason of such diversion. A trial before a jury resulted in a verdict for the defendants. Duck creek is not a perennial stream, but during freshets overflows the valley through which it runs, inundating the lands belonging to the several parties to the suit. The territory in controversy is the southeast quarter of section 168 in Dickens county, the southwest quarter of section 167, lying immediately east of section 168, the northeast quarter of section 153, lying immediately south of section 168, and the northwest quarter of section 154, lying immediately east of 153. The general direction of Duck creek is from northwest to southeast through these quarter sections of land. The appellee Carlisle owns the north half of the southeast quarter of section 168, W. T. Wilson owns the south half of said southeast quarter and the northeast quarter and the southeast quarter of section 153. The last two mentioned tracts are both on the west side of the channel of Duck creek. B. J. Hagins owns the southwest quarter of section 167 and A. J. Hagins owns the southwest quarter and the northwest quarter of section 154. Duck creek enters the lands described near the northwest corner of the southeast quarter of section 168, flowing through the land owned by Carlisle in a southeasterly direction for about 300 yards, curving to the east and northeast into the northeast quarter of said section 168, near the center of the south boundary line of said northeast quarter. The channel continues across said northeast quarter, its general direction being a semicircle northeast, east, and southeast, passing out near the southeast corner of said northeast quarter; thence across the northeast corner of the southeast quarter of section 168 into the southwest quarter of section 167, owned by plaintiff B. J. Hagins; thence continuing southeast, south, and west, running back into the southeast quarter of section 168, about 250 yards north of its southeast corner, passing across a point which is the common corner of sections 168, 167, 153 and 154; thence meandering southeast, south, and southwest across the west half of section 154, owned by the plaintiff A. J. Hagins. It is alleged that there is a slough or depression which comes out of Duck creek in the north half of the southeast quarter of section 168 on Carlisle's land, which runs south, or a little east of south, across the said southeast quarter of section 168, and on across the east half of section 153, passing out near its southeast corner, and a short distance below said corner leads back into Duck creek, as shown by the map.

Plaintiff alleges that there is an actual flow of waters during wet seasons down the bed of Duck creek, which traverses said lands, and a natural flow of water through said slough; that when the water is high in Duck creek the flood waters flow through said slough and across the land of the defendants Carlisle and Wilson; that the defendants have opened a ditch from a point where said slough leaves the bed of the creek on Carlisle's land, which extends in a southeasterly direction to where the bed of the creek crosses near the common corner of the above-described quarter sections; that in opening said creek the soil was thrown on the south or east side of said ditch, resulting in an embankment or a levee, which prevents the flood waters from flowing through said slough, and has resulted in diverting the natural flow of all flood waters from said slough through and across defendant's lands to the east of the channel of said creek; that after the construction of said embankment the same was broken by flood waters which flowed across the lands of the defendants as before the construction of the embankment, but that the defendant Wilson had repaired said embankment, which caused the overflow to again run across plaintiffs' lands, to plaintiffs' damage in the sum of $500.

The defendant Carlisle defaulted. The defendant Wilson denied the existence of any slough, as described in the plaintiffs' petition, and denied that there was any natural flow of flood waters through any such slough as alleged by plaintiffs. He alleged that said embankment and ditch were not constructed on the lands of the defendants for the purpose of diverting flood waters; that it did not have the effect to cause the diverted flood waters to flow over the lands of the plaintiffs. It is further alleged that the situation of the surveys to the north of the land involved in the suit and the course of the waters following Duck creek were such that overflow water left the creek before it reached the lands in controversy and overflowed plaintiffs' premises; that on September 8, 1917, there was an unprecedented rainfall in the watershed of Dockum creek, which was a tributary of Duck creek, which watershed was several miles northwest of the lands in controversy, which caused Duck creek to overflow its banks at a point about the center of the west half of the north half of the southeast quarter of the survey 168, owned by the defendant Carlisle, at the point where Duck creek turns and run into a northeasterly direction washing off a part of the top of the bank of Duck creek at said place, and flowing in a southeasterly direction over the southeast quarter of survey 168, and the east half of survey 153, and clogged and obstructed Duck creek below that point; that the defendant Carlisle failed and refused to remove the drifts and obstructions caused by said unprecedented rainfall, and in consequence thereof, in the month of June, 1920, during heavy rainfall upon the watershed of Duck creek, the channel became further obstructed and was completely closed, causing the waters which ordinarily flowed down such original channel to be turned therefrom and flow over the south bank of said creek at said point, and overflow the lands of the defendants to the south thereof, entering the creek again lower down. He further alleged that he offered his codefendant, Carlisle, if the latter would permit the removal of said obstruction and the restoration of the south bank of said creek to its previous condition, that he (Wilson) would bear all the expense of restoring the bank of said creek to its original condition, which offer Carlisle refused; that in the exercise of his lawful rights and in order to avoid the threatened change of a channel of the creek, without intending to divert any waters from their natural course, he constructed the ditch and embankment on his own land, as described in plaintiffs' petition. He alleged that there was another excessive rainfall in April, 1922, which caused a threatened change in the course of said creek on the west bank thereof where it enters the east half of survey 153, and just above where it crosses into survey 154, and that the overflow cut away the top of the bank for a distance of about 70 feet; that after the water subsided he constructed a small levee along the west side for the purpose of restoring the bank to its original height and condition before said overflow.

The controversy was submitted to the jury, who found as follows:

"(1) The defendants did not divert the flood waters of Duck creek and cause them to flow onto and over the lands of the plaintiff A. J. Hagins.

"(2) Defendants did not divert the waters of Duck creek, causing them to flow onto and over the lands of plaintiff B. J. Hagins."

The third and fourth issues, as follows, were answered in the negative:

"(3) If you find that the defendants did divert the flood waters of Duck creek and thereby caused them to flow onto and over the lands of plaintiff A. J. Hagins, was plaintiff A. J. Hagins' land damaged thereby?

"(4) If you find that the defendants did divert the flood waters of Duck creek, thereby causing them to flow onto and over the land of plaintiff B. J. Hagins, was plaintiff B. J. Hagins' land damaged thereby?"

By issues Nos. 5 and 6 the jury were requested to find to what extent the lands of A. J. and B. J. Hagins were damaged, to both of which issues the jury answered, "None."

The first proposition which we will consider is that, where the prayer is for an injunction to restrain defendants from maintaining a ditch, levee, and embankment, thereby throwing flood waters from their natural course onto the lands of plaintiffs, thereby constituting a continuing injury and damage to such lands, it was error for the court, in framing special issues, to confine them to a finding whether the lands had been injured, and in not so framing the issues as to permit the jury to find whether the lands would be injured and damaged in the future by such diversion. The appellant objected to the third and fourth issues comprehended under this proposition, and in his objections pointed out the particular defect complained of in the proposition, and further suggested what would be a correct issue. Under the case of Foster v. Atlir (Tex. Com. App.) 215 S. W. 955, we think this was sufficient to call the court's attention to the error and entitle appellant to urge it here. Appellant, however, went further than the objections stated, and submitted two special issues, which cured the defect. This was sufficient under article 1985, V. S. C. S., to have...