Harrell v. F. H. Vahlsing, Inc., 12374

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation248 S.W.2d 762
Docket NumberNo. 12374,12374
PartiesHARRELL et al. v. F. H. VAHLSING, Inc. F. H. VAHLSING, Inc. v. HARRELL et al.
Decision Date02 April 1952

Gibbon & Johnson, Harlingen, for appellants.

Cox, Wagner, Adams & Wilson, Brownsville, for appellee.

NORVELL, Justice.

This lawsuit involves conflicting claims relating to the right to use water from a drainage ditch maintained by Law Feria Water Control and Improvement District, Cameron County, No. 3, hereinafter referred to as the La Feria District. A recovery for loss of crops and for trespass was sought. F. O. Harrell and M. M. McClure were plaintiffs below (with one other who has not appealed) and F. H. Vahlsing, Incorporated (hereinafter sometimes referred to as Vahlsing), was defendant. The designations in the trial court will be used in this opinion, as both sides have appealed from the judgment rendered by the court below. The record is voluminous, consisting of 200 pages of transcript and 1267 pages of statement of facts. All issues have been well and thoroughly briefed by the attorneys for the respective parties, but a rather lengthy opinion is necessary to dispose of the matters presented. The case was submitted to a jury upon sixteen special issues. Upon motion filed in accordance with the provisions of Rule 301, Texas Rules of Civil Procedure, the trial judge set aside certain of the jury's findings and rendered judgment upon the remainder.

Harrell was allowed a judgment for $6,438.97 against Vahlsing and McClure was awarded a recovery of $1,300. By way of declaratory relief, it was decreed that:

a. Under an easement contract entered into between Harrell's predecessor in title and the La Feria District Harrell is entitled to use water from the district's drainage ditch upon 87.5 acres of land referred to as the Dunlap Tract. No attack is made upon this declaration or finding.

'b. The Plaintiff F. O. Harrell is entitled to use water from the drain ditch in question for use upon the tracts of land belonging to him and described in Paragraph I of the Plaintiffs' Fifth Amended Original Petition as the 'Harrell Tract' upon making proper contract with the La Feria Water Control and Improvement District, Cameron County Number 3, or in case no contract is entered into, then at just and reasonable prices and without discrimination, as provided under Article 7559 of the Revised Civil Statutes of Texas.' This declaration is attacked by defendant and will be hereinafter noticed.

c. Regardless of Vahlsing's right to use water from the drainage ditch, said rights are subordinate to plaintiffs' rights in and to the real property owned by them, and therefore Vahlsing had no right to transport water across said plaintiffs' lands without their permission.

d. The tracts known as the McClure and Yoder tracts 'have the same rights with respect to the use of the water from the drain ditch in question as declared and adjudged with respect to the Harrell lands set out in favor of the Plaintiff F. O. Harrell in subparagraph (b) above.'

Acting in conformity with the provisions of Rule 279, the court expressly found that the maintenance of a conduit pipe whereby water was transported over a portion of the Harrell tract to the Vahlsing tract was a proximate cause of the crop losses which the jury found were sustained by plaintiffs. The court further expressly found that F. H. Vahlsing, Incorporated, was a real party at interest in a federal court suit in which F. H. Vahlsing as an individual was plaintiff.

We first consider the complaints of Harrell and McClure relating to the judgment of the trial court.

Plaintiffs contend that under the jury findings they were entitled to judgment against Vahlsing for the sums of $2,437.50 (to Harrell) and $16.317.50 (to McClure), respectively, for the loss of approximately 121 bales of cotton. McClure was farming three tracts of land, known as the Harrell, Yoder and McClure tracts, and it is asserted that he was entitled to use water from the drainage ditch of the La Feria District in order to irrigate his crops. Vahlsing had an agreement with the district under which it purchased water within the drainage ditch for irrigation purposes. In order to transport the water from the drainage ditch to its land, Vahlsing laid an underground pipe extending from the ditch to the east boundary line of the Harrell tract, which was also the east line of the easement held by the La Feria District for its drain. By means of this pipe Vahlsing took practically all of the water from the drainage ditch, with the result that none was available for the lands being farmed by McClure. This action, according to the jury's findings, resulted in a diminished cotton crop being grown upon the lands farmed by McClure.

There is contained in plaintiffs' brief a map which discloses the position of the tracts of land involved with reference to the North Main Drainage Ditch of the La Feria District which is here involved. This ditch is shown running approximately east between the South Harrell and North Harrell tracts (Blocks 15 and 16) and thence northerly approximately parallel to the east boundary line of the north Harrell tract to a point on the east boundary line of the McClure tract and thence in a northeasterly direction through the Ballinger tract to a gate on the North Floodway. The Vahlsing tract lies to the east of the North Harrell tract. Upon the map, a canal is shown crossing the Vahlsing tract. This canal was connected with the drainage ditch by means of the underground pipe above mentioned which underlaid the Harrell tract. A suction pump was used by Vahlsing to lift the water from the drainage ditch into the canal mentioned. A copy of the sketch is here subjoined in the interest of clarity in discussing the matters incident to the physical characteristics of the properties involved.

Prior to June 30, 1947, Vahlsing had maintained and operated a pipe thirty or forty feet in length underlying lands owned by Harrell but within the water district's easement boundaries. This was done under written agreements with Harrell. The agreement covering the period of time from July 1, 1945, to June 30, 1946, provided for a rental of $25. In august of 1946, Vahlsing leased some land from Harrell and as a part of this transaction Harrell extended Vahlsing's right to maintain the pipe in question until June 30, 1947. Harrell refused to enter into a further agreement allowing Vahlsing to use the pipe. This led to litigation in the federal courts between the parties in which Vahlsing contended that the easement of the drainage district was sufficiently broad and comprehensive to allow him to maintain the pipe in question. This matter was determined adversely to Vahlsing. See Vahlsing v. Harrell, 5 Cir., 1949, 178 F.2d 622, writ of certiorari denied by the Supreme Court, 1950, 340 U.S. 812, 71 S.Ct. 39, 95 L.Ed. 597. During the greater part of this period of litigation, Vahlsing maintained and used the pipe underlying Harrell's land. During the cotton crop year of 1948, Vahlsing removed so much water from the drainage ditch that there was not a sufficient amount remaining to irrigate the lands being farmed by McClure. The trial court denied a recovery to Harrell and McClure for crop damage upon the theory that said parties had not shown themselves entitled to use water from the drainage ditch. In determining the correctness of this holding, two questions are presented which will be discussed in inverse order:

First, Is the right to use and control the water within the drainage district vested in the La Feria District or the owners of lands which adjoin the ditch?

'Second, Assuming that the La Feria District has the right to use and control the waters within the ditch, is this fact available to Vahlsing as a defense?

We think that the district's ownership or control of the water in dispute is available to Vahlsing. Said defendant had a contract with the La Feria District providing that it be furnished with waters from said drainage district for irrigation purposes. Vahlsing is holding and claiming under the district and is clearly entitled to assert the district's right to the waters as against the claim asserted by plaintiffs. It is asserted that Vahlsing is a 'trespasser' and its rights should be determined with reference to that status. However, assuming that the La Feria District has the right to control and dispose of the water within its drainage ditch, Vahlsing cannot be a trespasser, insofar as its right to use the water is concerned. The claim of trespasser arises from the fact that in the litigation had in the federal courts it was judicially determined that Vahlsing had no right to maintain a suction pipe under Harrell's land for, although the lands lying east of the location of the drainage ditch and west of the east boundary line of Harrell's property (a strip of thirty or forty feet occupied by a spoil bank), lay within the boundaries of the La Feria District's easement, this easement was for drainage only and did not include the right to maintain a conduit for transporting water for irrigation purposes. Vahlsing v. Harrell, 5 Cir., 178 F.2d 622. The failure of the district or Vahlsing to secure a proper right-of-way serves as an impediment to the transportation of water from the district's ditch to the Vahlsing tract because of the physical position of the ditch within the easement. It has no effect upon Vahlsing's right to receive water from the district if the district has in law the authority to control the water within its ditch. The position of the ditch within the easement presents a question of practical transportation for water which may be perhaps solved in a number of ways, such as by moving the position of the ditch to the edge of the easement, by condemning a right-of-way, or by devising other means of transportation or conduit to the Vahlsing tract. The present physical...

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