Houston & T. C. Ry. Co. v. East

• Court: Texas Supreme Court
• Writing for the Court: Williams
• Citation: Houston & T. C. Ry. Co. v. East, 81 S.W. 279, 98 Tex. 146, 4 Ann. Cas. 827, 107 Am. St. 620 (Tex. 1904)
• Decision Date: 13 June 1904
• Parties: HOUSTON & T. C. RY. CO. v. EAST.

Page 279

81 S.W. 279

HOUSTON & T. C. RY. CO. v. EAST.

Supreme Court of Texas.

June 13, 1904.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by W. A. East against the Houston & Texas Central Railway Company. From a judgment of the Court of Civil Appeals (77 S. W. 646) reversing a judgment for defendant, defendant brings error. Reversed, and that of district court affirmed.

Baker, Botts, Baker & Lovett and Head & Dillard, for plaintiff in error. Perry Morris and Moseley & Eppstein, for defendant in error.

WILLIAMS, J.

This case is thus stated by the Court of Civil Appeals:

"This is a suit by W. A. East against the Houston & Texas Central Railroad Company for damages growing out of the alleged destruction by defendant of plaintiff's well. The case was tried before the court without a jury, and resulted in a judgment for defendant, and plaintiff appealed. The trial court filed conclusions of fact, which, in the absence of a statement of facts, are to be taken as the facts of the case. Said conclusions are as follows:

"`(1) The defendant, the Houston & Texas Central Railroad Company, was the owner in fee simple of six (6) lots in the city of Denison, Grayson county, Texas, at the time mentioned in plaintiff's petition, and dug thereon a well twenty (20) feet in diameter and sixty-six (66) feet deep. It put therein a steam pump of sufficient strength to supply a three-inch pipe, and with the exception of three or four days since August, 1901, has daily taken from said well by means of said pump about twenty-five thousand (25,000) gallons of water. This water was taken from said well and used by it in its locomotives and machine shops operated by it in the city of Denison, in which said land is situated. Said well is supplied entirely by water percolating through its soil and that of adjacent lands, and not by any underground or other stream of any kind. Before digging said well, defendant made an examination of its surroundings, including the well of the plaintiff, and made test holes, with a view of obtaining the desired supply of fifty thousand (50,000) gallons of water per day. Plaintiff was present when such examinations were being made, and consented for his well to be examined by defendant, and had no further conversation or communication with the defendant upon the subject. From the examination made by it, defendant became satisfied that it could procure the desired supply of water upon the land as aforesaid, and dug said well for purposes of obtaining the same for the uses hereinbefore set out. The wells were dug without any intention on the part of defendant of injuring the property of either of the plaintiffs, and did not know that such would be the effect. The water percolated into defendant's well at different depths, some of it coming into the bottom thereof. The well of plaintiff is about five feet in diameter and about thirty-three feet in depth, is on land owned by plaintiff in fee simple and is used as a homestead by plaintiff, was dug prior to defendant's well, and had always been used by plaintiff, up to the time defendant's well was dug, for household purposes, and prior to that time had always supplied an adequate supply of water for such uses; that this well has been dried up by the digging and use to which defendant has put its well; that the damage that plaintiff and his land has sustained by the drying up of his well is the sum of two hundred and six dollars and twenty-five cents ($206.25), including both past and prospective injury to himself and the lots described in his petition.

"`(2) I further find that the use to which defendant puts its well was not a reasonable use of their property as land, but was an artificial use of their property, and if the doctrine of reasonable use, as applicable to defined streams, is applied to such cases, this was unreasonable.'"

The Court of Civil Appeals reversed the judgment of the district court in favor of the defendant, and rendered judgment for plaintiff for the damages claimed. We are of the opinion that this judgment is wrong, and that of the district court right. Since the decision in the case of Acton v. Blundell, 12 Mees. & W. 324, the law as therein laid down, so far as it controls this case, has been recognized and followed in the courts of England, and probably by all the courts of last resort in this country before which the question has come, except the Supreme Court of New Hampshire. Bassett v. Salisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec. 179; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276. That doctrine is thus stated: "That the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from the underground springs in his neighbor's well, this inconvenience to his neighbor falls within the description of damnum absque injuria, which cannot become the ground of an action." The arguments in favor of the application to such cases of the doctrines applicable to defined streams of water were thoroughly presented at the bar in Acton v. Blundell, and the reasons for the conclusion of the court against such application were carefully stated in the opinion. In all that has been said in subsequent discussions, little, if anything, has been added to the arguments of counsel and of the court in that case. Acton v. Blundell, supra; Chasemore v. Richards, 7 H. L. Cas. 364; Frazier v. Brown, 12 Ohio St. 294; Miller v. Blackrock Springs Imp. Co. (Va.) 40 S. E. 27, 86 Am. St. Rep. 924. The many other authorities on the subject are cited in the cases referred to, and so thorough has been the discussion that we feel that it would be useless to attempt any addition. The practical reasons upon which the courts base their conclusions fully meet the more theoretical view...