Houston, E. & W. T. Ry. Co. v. Charwaine

• Decision Date: 11 December 1902
• Citation: 71 S.W. 401
• Parties: HOUSTON, E. & W. T. RY. CO. v. CHARWAINE.
• Court: Texas Court of Appeals

71 S.W. 401

HOUSTON, E. & W. T. RY. CO. v. CHARWAINE.

Court of Civil Appeals of Texas.

December 11, 1902.

Error from district court, Harris county; Wm. H. Wilson, Judge.

Action by Mary Charwaine against the Houston, East & West Texas Railway Company and the city of Houston. From a judgment in favor of plaintiff and against both defendants, the Houston, East & West Texas Railway Company brings error. Affirmed.

Baker, Botts, Baker & Lovett and J. S. McEachin, for plaintiff in error. Burke & Griggs, for defendant in error.

PLEASANTS, J.

Defendant in error brought this suit on the 7th day of February, 1899, against the plaintiff in error and the city of Houston jointly, to recover damages to property owned by defendant in error in the city of Houston. The damages claimed are alleged to have been caused by the negligent construction and maintenance by the railway company of a sewer constructed and maintained along the street adjoining plaintiff's property, and over which said company operates its railway, and by the negligence of the city of Houston in the opening and grading of certain streets in the city of Houston in the vicinity of plaintiff's property, thereby changing the natural flow of the surface water, and concentrating it in the street near plaintiff's home and upon plaintiff's premises. The allegations of the petition as to the negligence of the defendants and the damages caused thereby are as follows: "That plaintiff is the owner in fee of lot 9, block 6, Ritchie's addition, near the corner of William and Sterrett streets, which is the home of plaintiff. That some time prior to the 1st day of March, 1897, the Houston, East & West Texas Railway Company constructed a sewer from the corner of William and Sterrett streets down along and within the confines of a natural water course, for the purpose of building thereover its tracks. That the natural water course always theretofore had been a natural drain way for the large area of land in the vicinity of plaintiff's home, and including the above property, and carried off all of the surplus and surface waters that came upon plaintiff's said property, and of the surrounding property. That in constructing the sewer the railway company made and constructed gates or service ways at the entrance thereof at the corner of William and Sterrett streets for the purpose of permitting the water to enter said sewer. That for a long time the said defendant kept the sluiceways free from rubbish and trash, but that on and after the 1st day of March, 1897, the defendant company failed and neglected to care for or give any attention whatever to said sluiceways, and because thereof the same became clogged with rubbish at every rainfall, and would not permit the water to flow through the sewer, and said waters then and there so gathered backed upon and stand over and upon plaintiff's said premises to the depth of two or three feet, and so remain at times for the space of forty hours. That such has occurred during the last two years prior to the filing of this petition very frequently and at nearly every rainfall, and that the water so standing has cast sediment and refuse thereon, and has killed the flowers, fruit, and vegetables, and caused fences, walks, and other wooden structures to decay, and has caused the premises to become filthy and unhealthy, and has superinduced sickness in plaintiff's family, and has permanently deranged and damaged the health of plaintiff and her family, all to plaintiff's damage in the sum of $2,500. That on or about January 1, 1898, the said defendant company made and constructed an additional sewer and aqueduct, beginning at or near its depot, about 700 feet southwest from, and leading up to, said sluiceways formerly constructed at the mouth of said sewer at the corner of said William and Sterrett streets. That the additional sewer was intended to, and did, divert the water from its former course, and causes the same to be thrown and deposited in the vicinity of plaintiff's property, thereby adding to and augmenting the flow of water which gathers at rainy periods at said place, and which is unable to escape through the said sluiceways for the reason stated, to wit, inefficient construction thereof, and the negligence of the defendant in failing to keep the same clear of rubbish, trash, and flotsam. That the water so conducted by said latter sewer, running from defendant's said depot, added to and augmented the said waters so gathered upon said plaintiff's premises, and caused said water seeking an outlet through said sluiceways to longer remain upon and cover more deeply plaintiff's said property. That on, after, and since the said 1st day of March, 1897, the defendant the city of Houston, by reason of its opening up of Providence, Conti, and other streets, and the grading and paving of McKee and Liberty streets, thereby changed the natural flow of the surface waters in, along, and about the vicinity of said streets, and concentrated said waters in and upon William street, at and near the home of plaintiff, thereby increasing the amount of such surface water as previously gathered in and around said premises, rendering plaintiff's said home almost uninhabitable. Plaintiff alleges: That the city of Houston has assumed charge and control of said sewer, and that the defendant now, and ever since it assumed such control, allowed drift and flotsam to choke up and close the flood gates and opening in said sewer; thereby preventing the waters which gather in and around upon plaintiff's premises from the sources aforesaid to escape, and thereby causing the same to stand upon the plaintiff's premises, to her great hurt and injury. That said defendant, under its regular system of drainage, and through street commissioner, has graded, dug ditches, filled in and along Sterrett, Providence, Conti, and William streets, in such a way as to change the flow of water from its natural course, and caused the same to flow toward and concentrate in and upon plaintiff's said premises. That said property has been rendered almost wholly useless for residence purposes. The frequent deposits of filth and slime, refuse and dirt,...