Langford v. Kraft

• Decision Date: 26 July 1973
• Docket Number: 7484,Nos. 7483,s. 7483
• Citation: 498 S.W.2d 42
• Court: Texas Court of Appeals
• Parties: Ivan LANGFORD et al., Appellants, v. Karl E. KRAFT, Appellee. DOWNING & WOOTEN ENTERPRISES, INC., et al., Appellants, v. Karl E. KRAFT, Appellee.

Page 42

498 S.W.2d 42

Ivan LANGFORD et al., Appellants, v. Karl E. KRAFT, Appellee.

DOWNING & WOOTEN ENTERPRISES, INC., et al., Appellants, v. Karl E. KRAFT, Appellee.

Nos. 7483, 7484.

Court of Civil Appeals of Texas Beaumont.

July 26, 1973.

Rehearing Denied Aug. 16, 1973.

Sears and Burns, C. Charles Dippel of counsel, Houston, for Ivan Langford and others.

Fred A. Collins, Houston, for Downing & Wooten Enterprises, Inc.

Karl E. Kraft, pro se.

KEITH, Justice.

We review two interlocutory appeals by different defendants complaining respectively of an order overruling the plea of privilege of Langord to be sued in Harris County, and the granting of a temporary mandatory injunction against the other defendant, Downing & Wooten Enterprises, Inc. There is a common transcript, and the two appeals are from a single order entered after a hearing in which all of the parties participated, with the testimony being contained in one statement of facts. In this single opinion we will dispose of the separate appeals; and, in so doing, we will refer to Kraft as plaintiff, Langford by his surname, and to the defendant, Downing & Wooten Enterprises, Inc., as 'Developers'.

1. Preliminary Statement

At all times material to this suit Kraft was the owner of a 21-acre tract of land located in Montgomery County upon which he resided. The Developers purchased a tract of land containing approximately 52 acres, part of which was adjacent to that owned by plaintiff. Developers retained Langford, an engineer, to prepare plans and specifications for the drainage and street improvements upon their land which they subdivided into a development known as 'Vicksburg'. The plat of this subdivision was presented to and approved by the City Planning Commission of the City of Houston (within whose extraterritorial jurisdiction the land was situated), and by the Commissioners Court of Montgomery County.

The plat of the subdivision dedicated the streets therein to the public use and elaborate plans and specifications were prepared by Langford for the paving thereof and the construction of storm sewers for carrying off the surface water from the subdivision. Before the improvements were constructed, the Developers' lands were in a raw state with trees, brush, etc., and the soil was of a sandy and porous nature. After completion of the improvements, some six acres of the subdivision were made up of paved streets designed to drain into an elaborate system of storm sewers. This change in the surface of the land, as well as the construction of houses upon the lots in the subdivision, materially altered the ability of the land to absorb the natural rainfall thereon.

According to plaintiff's allegations and his own testimony, before the commencement of the changes approximately twenty to twenty-five acres of Developers' land drained naturally away from plaintiff's land, with the remainder draining into a natural drainway onto and across his lands. Under Langford's plans, according to plaintiff's evidence which is supported at least in part by the engineering evidence, all of the fifty-two acres of the subdivision was drained onto and across plaintiff's lands, causing flooding, permanent damage including erosion, etc., thereon.

Plaintiff sought compensatory and punitive damages against Developers and Langford for the alteration of the natural drainage, the damage done to his land in the past, etc. He also sought a mandatory injunction to prohibit further dumping of the excess water upon his lands pending a hearing on the merits of the controversy.

Langford filed his plea of privilege to be sued in Harris County and it was controverted by plaintiff who relied upon Subdivisions 9 and 14 of Art. 1995, Vernons Ann.Civ.St. The single hearing resulted in one order which overruled Langford's plea of privilege and granted the mandatory injunction restraining the Developers alone 'from discharging, or permitting to be discharged, from the storm sewer system situated on the Vicksburg Subdivision land surface water and other water from the said subdivision land onto plaintiff's land' by requiring certain specific acts including the closure of the discharge opening in the storm sewer system adjacent to Kraft's land.

Plaintiff having posted the required injunction bond, the court permitted Developers to supersede the judgment, and both appeals are now before us.

2. Developers' Appeal from the Mandatory Injunction

Plaintiff relied upon the provisions of § 5.806, V.T.C.A., Texas Water Code, the pertinent provisions thereof reading:

'(a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.

'(b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow.'

The predecessor statute to § 5.086 was Art. 7589a, V.A.C.S., the validity of which was upheld in Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451 (1932).

Not all of Developers' lands were higher than that of plaintiff; and, as to the land of plaintiff which was lower than that of Developers, it 'must receive the surface waters naturally flowing thereon from a higher estate, yet it is not required to receive these waters except in their natural condition, untouched by the hands of man.' Bunch v. Thomas, 121 Tex. 225, 49 S.W.2d 421, 423 (1932). Plaintiff's '(l)and is subject to no servitude to receive upon it water, the natural flow of which has been diverted to it.' Higgins v. Spear, 118 Tex. 310, 15 S.W.2d 1010, 1011 (1929). The proprietor of higher land 'is entitled to have surface water flow to the lower land, so long as the water follows its usual course and runs in its natural quantities.' Samples v. Buckman, 246 S.W.2d 283, 285 (Tex.Civ.App., Amarillo, 1952, error ref.).

Under plaintiff's evidence, which was accepted by the trial court, the Developers had so constructed their storm sewer system as to cause the entire surface rainfall to be concentrated into one system of pipes from which it was discharged in a concentrated mass with great force upon his lands. Our review of the record convinces us that the Developers had increased both the quantity and the velocity of the runoff water and caused 'it to pass off onto the lands of the defendants in error (plaintiff) in increased quantities, in a different state and in a manner well calculated to inflict injury.' Miller v. Letzerich, supra (49 S.W.2d at 414).

In so doing, the Developers violated the statute and their acts were, in the language of Chief Justice Cureton in Miller, supra, 'prohibited, not only by the civil law and the statute under examination, but are condemned with equal emphasis by the socalled 'common law rule' or 'common enemy doctrine." Id.

Developers rely heavily upon the rule of law that a temporary mandatory injunction 'should never be granted except with great caution and only in cases of extreme hardship when the necessity for the relief is manifest.' Lowe, 6 Texas Practice, Remedies § 155, p. 192 (2d Ed. 1973). Primary reliance is had upon the decisions of Nolte Irr. Co. v. Willis, 180 S.W.2d 451 (Tex.Civ.App., Amarillo, 1944, error ref. w.o.m.), and Cabla v. Shockley, 402 S.W.2d 289 (Tex .Civ.App., Amarillo, 1966, error ref. n.r.e.).

We do not find these cases dispositive. In Nolte, only a mandatory injunction was sought by plaintiff and it was denied although the court found that the presence of the offending dam "causes a diversion of the surface-water to some extent." (180 S.W.2d at 452) The Amarillo court simply held that the statute did not Require the trial court to grant the mandatory injunction sought and said:

'The statute merely guarantees to the appellant the right to recover damages if he can show damage, and the right to equitable relief if he establishes facts which will bring him within the purview of the equitable rules authorizing equitable relief. In the instant case the appellant has failed to convince the trial court that his damage was serious or will be serious and has failed to show conditions of such a nature as to make it an abuse of discretion on the part of the trial court in refusing to issue the mandatory injunction. (Id. 180 S.W.2d at p. 455)

In Cabla the jury found that the dike in question did not obstruct the natural flow of the surface water and did not answer the damage issue which was conditionally submitted. After quoting copiously from Nolte, supra, Chief Justice Denton concluded: 'In our opinion the facts of this case fail to show damages of such a nature to justify the granting of a mandatory injunction.' (402 S.W.2d at 292)

In contrast to the fact structure of Nolte and Cabla, the trial court's findings, as embodied in the judgment, are clear and precise:

'(T)he Court being of the opinion, that Plaintiff is entitled to the temporary injunctions as herein granted . . . for the reason that the diversion of, and the unnatural discharge of, surface water, and of water mechanically delivered to Vicksburg subdivisions, onto Plaintiff's land from the storm sewer system situated on the said subdivision land will probably result in irreparable injury to Plaintiff and to Plaintiff's land; that such discharge of water has caused and, if permitted to continue, will probably further cause, substantial erosion of and destruction to Plaintiff's land in, along and in the vicinity of the natural drainway thereon; that such discharge of water has inundated and, if permitted to continue, will probably further inundate substantial areas of Plaintiff's land; that such discharge of water has produced and, if permitted to continue, will probably maintain a flowing drainway, ditch or gully of ever increasing dimensions so as to isolate, and deprive Plaintiff the use of, a...