Houston Natural Gas Corp. v. Pearce

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation311 S.W.2d 899
Docket NumberNo. 13170,13170
PartiesHOUSTON NATURAL GAS CORPORATION, Appellant, v. W. B. PEARCE et al., Appellees.
Decision Date27 February 1958

Page 899

311 S.W.2d 899
W. B. PEARCE et al., Appellees.
No. 13170.
Court of Civil Appeals of Texas, Houston.
Feb. 27, 1958.
Rehearing Denied April 3, 1958.

Fulbright, Crooker, Freeman, Bates & Jaworski, Robert M. Welch, Jr., Houston, for appellant.

John V. Wheat, James T. Wright, Houston, Dyche, Wheat & Thornton, Houston, of counsel, for appellees.

WERLEIN, Justice.

This suit was filed March 23, 1953, by appellees, W. B. Pearce et al., against appellant, Houston Natural Gas Corporation, to recover damages to their building allegedly caused by appellant's negligent failure to properly backfill and tamp a ditch or trench it had excavated in front of appellees' building in June, 1950, for a gas pipeline. The case was tried to the court without a jury and resulted in a judgment for appellees in the sum of $10,500. Appellant has duly perfected its appeal to this Court.

Appellant has grouped its first 18 points of error, which have to do with the matter of liability vel non on the part of appellant in connection with the work that it did in laying its 6-inch gas pipeline under the sidewalk and parallel therewith in front of appellees' building. The roof of

Page 900

plaintiffs' building was drained by a cast iron drainpipe running some inches underneath the sidewalk and crossing appellant's ditch line at right angles above appellant's gas pipeline. Appellees alleged that appellant after laying its pipeline in said trench failed to backfill and tamp the same sufficiently to prevent the earth lying under the sidewalk from settling or sinking, and that as a result of such failure the walk settled and pressed down against the drainpipe, causing it to separate or break at its joints, thereby causing rainwater coming from the roof of the building to flow into the area underneath the sidewalk instead of into the street adjoining. They further alleged that such condition in time created a super-saturated condition under the sidewalk, which in turn caused cracks in the basement wall of their building and resulted in water flowing through such cracks and into the basement of the building.

Appellees relied largely upon circumstantial evidence in attempting to prove that the appellant was negligent in failing to backfill and tamp its ditch properly and that such negligence proximately caused the drainpipe to settle as a result of the settling of the sidewalk. Appellant contends that the circumstances and evidence show that the drainpipe had settled prior to the settling of the sidewalk and that the drain settled not because of the manner of the backfilling and tamping of the ditch, but because of water getting under the drainpipe from sources not pleaded as being attributable, or not actually being attributable, to the appellant.

The parties stipulated that the sidewalk was 15 1/2 feet in width from the building to the curb, and the pipeline in question was located 9 1/2 feet South of the south wall of the building and 6 feet from the curb, ran the entire distance of the sidewalk in front of appellees' building, and was buried approximately 3 feet below the surface of the ground. The sidewalk and pipeline are in an easement dedicated to the Public for street, sidewalk and utility company use, and appellant is a utility company. It was further stipulated that the drainpipe in question was at all times the property of the appellees, and that it was located approximately 1 1/2 feet from the southwest corner of the building, and was 6 inches in diameter, and in three 5-foot lengths, the first joint from the curb being in the course where the appellant's trench was dug. It was also stipulated that appellees do not rely upon the doctrine of res ipsa loquitur but solely upon specific acts of negligence alleged in their amended petition.

The trial court made its findings of fact, the material findings being substantially as follows: Commencing at the west edge of the sidewalk in front of appellees' building, appellant used an interrupted trench method, excavating a series of holes approximately 8 feet in length, which holes were separated by approximately 8-foot lengths of undisturbed sidewalk. In tunneling under the undisturbed sections of sidewalk appellant dug from each end of the undistrubed portion angularly downward from the sidewalk level to the center of the undisturbed portion, so that in the center of the undisturbed portion the hole was at the bottom of the ditch and large enough for the gas line to pass through. The first open excavation made by appellant exposed the drainpipe located at the southwest corner of appellees' building at a point where two pieces or joints of the cast iron pipe were joined together. After such pipeline was laid, appellant failed to backfill the trench with adequate amounts of dirt or other fill material and to tamp sufficiently to prevent the earth lying under the concrete sidewalk from settling or sinking, and that as a result of appellant's failure to do so, the concrete slab over the trench cracked and sank, causing said drainpipe to separate at its joint in the ditch line, thus exhausting rainwater coming from the roof of appellees' building into the area beneath the sidewalk. Following the separation of such drainpipe, are area underneath the

Page 901

sidewalk became flooded and the soil thereunder became thoroughly saturated with water. That in time, following the flooding of the area underneath said sidewalk, the accumulated water migrated to and against the front or south basement wall of appellees' building and down to the foundation of said building, causing a settling of the foundation of the building and a cracking of the front basement wall thereof. That on or about June, 1951, the accumulated water for the first time noticeably seeped through the cracks in the front or south basement wall of the building and into the interior thereof, and that at such time work was performed by appellees on the interior basement wall on the south side of the building, in order to prevent the seepage of water through cracks therein. That in February of 1952 the seepage of water through cracks in the front basement wall of said building became pronounced and the tenant of such building made demand upon appellees to repair the leaking condition of the wall. That in June 1952 appellees caused to be removed a portion of the sidewalk lying along the front side of their building, at which time the flooded condition underneath such sidewalk first became apparent. That in the months of June and July, 1952, appellees had repairs made to such building designed to repair the damage caused by the accumulation of water underneath such sidewalk, and that the reasonable cost of such repairs in Houston upon such dates was $10,500. That the damage to appellees' building caused by the accumulation of water under the sidewalk occurred after June 6, 1950, and resulted in the cracking of the front basement wall of said building and the seepage of water therethrough and was permanent in nature, and the market value of such building was diminished by reason thereof in the amount of $12,700.

The court further found that the method of excavation and the interrupted trench method used by appellant was the customary and usual method used by companies in Houston, but that the method of backfilling was not customary or usual.

Based upon such findings of fact, the court made its conclusions of law, concluding that appellant was negligent in failing to properly backfill with a sufficient amount of dirt or other backfill material the trench which it had dug and in failing to properly tamp the backfill dirt that appellant placed in such trench, and that the appellant was under a duty to appellees to properly backfill and tamp the trench under said sidewalk, and that the negligence of appellant in not doing so was a proximate cause of the damages resulting to appellees' building. The court also concluded that appellees were not guilty of contributory negligence and that the first actual notice which they had of defendant's negligence was during the month of June, 1952, and that there was no evidence that appellees could have by reasonable diligence discovered such negligence prior to that time. The court further found that limitations as to appellees' cause of action commenced to run at the time they discovered or should have discovered by the exercise of reasonable diligence the cause of the cracks and leaking in their basement walls which the court found was in June, 1952, and that the statutes of limitation did not bar plaintiffs' action. The court further concluded that appellees could not interfere with nor control appellant in the reasonable use of the easement for the purposes for which the easement was dedicated, including that of laying a natural gas pipeline under the sidewalk in question, and that the measure of damages applied by the court was the diminution of market value of plaintiffs' building resulting from the damage caused by appellant's negligence, such diminution and market value being measured by the difference in the market value of the property immediately before and immediately after the injury, but that plaintiffs' recovery was limited, however, to the amount prayed for in their petition, which was $10,500, for which amount appellees were entitled to judgment.

Page 902

It will be necessary for this Court to review the evidence adduced at the trial in order to determine whether or not the findings of the court and its conclusions of law based thereupon are supported by the evidence. Findings of fact have the same force and dignity as a jury verdict upon special issues. If they are supported by some competent evidence they will not be disturbed upon appeal unless they are so against the overwhelming weight of the evidence as to be clearly and manifestly wrong. Wells v. Yarbrough, 84 Tex. 660, 19 S.W. 864; Cook v. Mann,...

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