Hall v. City of Austin

• Decision Date: 07 December 1898
• Citation: 48 S.W. 53
• Parties: HALL et al. v. CITY OF AUSTIN.
• Court: Texas Court of Appeals

48 S.W. 53

HALL et al. v. CITY OF AUSTIN.

Court of Civil Appeals of Texas.

December 7, 1898.

Appeal from district court, Travis county; R. E. Brooks, Judge.

Action by Amelia Hall and husband against the city of Austin. Judgment for defendant, and plaintiffs appeal. Reversed.

John Dowell, for appellants. T. B. Cochran, for appellee.

FISHER, C. J.

The nature and character of this action are correctly stated in the charge of the trial court, which is as follows: "This is a suit by Amelia Hall, joined by her husband, Sidney Hall, as plaintiffs, against the city of Austin, as defendant, to recover damages alleged to have been inflicted upon plaintiffs by defendant's having erected a dam across the Colorado river, and destroyed plaintiff's means of egress from her premises, situated on the west side of the Colorado river, and the value of which is alleged to have been destroyed by defendant's having destroyed the roadway to said premises, for which plaintiff sues. The defendant denies the allegations of plaintiff. The plaintiff alleges that the roadway leading to said premises was a public roadway,—made so by long-continued use by the public for a public road, for more than twenty years. The plaintiff also alleges that she had a right to said roadway by reason of the doctrine of necessity, and that the erection of said dam caused the waters of said river to submerge a portion of plaintiff's land, for which she also sues. You are instructed that there being no evidence before you that the road leading from plaintiff's premises was a public road, except its long-continued use as such by the public, and the working of the same by parties using it, and such lands being uninclosed lands, such evidence is not sufficient to warrant the jury in finding said road was a public road. Neither is the evidence sufficient to warrant the jury in finding that plaintiff had a right of way over said road under the doctrine of necessity. You cannot, therefore, find for the plaintiff for damage to her said premises by reason of the destruction of said roadway. Upon the question of damages to said premises by submerging or overflowing any part thereof by the backwaters from said dam, you are instructed that if you believe from the evidence that the defendant erected said dam, or caused same to be done, and that the waters of said Colorado river were thereby caused to submerge or flood plaintiff's land, or any part thereof, then you will return a verdict for the plaintiff for the reasonable market value of the land so flooded or submerged, if any, at the time it was so flooded, with 6% interest from that date to the present. And unless you do believe from the evidence that the land of plaintiff, or some part thereof, was flooded or submerged by the backwaters in Bee creek, caused by the erection of said dam and the obstruction of the Colorado river, you will return a verdict for the defendant. The burden of proof is on the plaintiff to show by a preponderance of the evidence the facts which entitle her to recover. The jury are the exclusive judges of the facts proven, the credibility of the witnesses, and the weight to be given the testimony, but must receive the law from the court, and be governed thereby." In response to the issues submitted, the jury returned a general verdict in favor of the defendant.

It appears from the facts that the appellant Amelia Hall, with her husband, was residing on their farm, located on Bee creek, from 1886 to the spring of 1893, when the city of Austin completed its dam across the Colorado river; thereby causing the water to back up Bee creek, and submerge the road that was in use by the plaintiffs in going to and from their place of residence. In October, 1886, they purchased this place from one Peel, who prior to that time resided there. The plaintiffs' vendors purchased this place from one Taylor, who at that time and subsequently owned much of the land from there to the Colorado river over which the road in question ran; but the testimony does not show that he owned all of the land extending from the river to the appellants' place. In the spring of 1893 the city erected a dam across the Colorado river below the mouth of Bee creek, up which the road in question extended to the plaintiffs' residence. The construction of this dam caused the water to flow up the creek and submerge the road for much of the distance from the river to the plaintiffs' residence, which was west of the river, about a mile and a half or two miles; and the backwater also destroyed the ford over the Colorado river where this road crossed, connecting with the road on the east side of the river, extending to the city of Austin. There is evidence which shows that the ford across the Colorado river, and the road extending up Bee creek to the plaintiffs' place, had been in use by the public since 1870, and that it was so continuously used up to the time it was obstructed by the dam in question. The main purpose for which the road was used was for hauling wood and timber out of the mountains on the west side of the river. Upon the question of use, G. J. Taylor testified: "I know Mr. Hall's place [meaning the appellant]. That place belonged to my father. I think this land of Hall's is a part of a tract which my father sold to Mr. Peel, who afterwards sold to Hall. I know this road from Hall's down Bee creek, crossing at the ford. I have known that road since about 1870. It has been a public road as long as I have known it, and used continuously by the public. I think the road was there before my father owned that place. We came there about 1870, and the road was there then. My father acquired that land from different parties,—mostly from Chambers. There were several surveys over there. We sold ties and wood off that land." Witness Krause testified: "I am acquainted with the road that ran down Bee creek and crossed at the ford at the mouth of Bee creek. I first became acquainted with that road when the Houston & Texas Central road was built into Austin. I think that was in 1871. I had a contract to haul railroad ties, and had some teams, and hauled ties from up there. At that time the road was used by the public. I used to meet a good many wagons coming to town. The road was used by anybody who wanted to use it. From 1871 it was used by the public up to the time the water was turned on the dam. The road began at the city of Austin, ran out Pecan street right by my house, and then on this side of Walsh's. Above the Cook tract the road turned down to the river, and crossed the river at Bill Walsh's. It was a continuous road from the city to Hall's place. I know where Hall's place is, and where Bee Creek Smith lived. There is now no road from Hall's house. His place is surrounded by mountains. He can't get in and out, because he has no road. I know that that road was worked. I was road overseer for a number of years as far as the river on this side of the river. I was road overseer two or three times. I worked the road as far as the ford. I had nothing to do with the road on the other side of the river. I think I was road overseer two terms when Brackenridge was county judge, and one term under Von Rosenberg. That was...