Live Oak County v. Lower Nueces River Water Supply Dist.

• Decision Date: 25 September 1969
• Docket Number: No. 7069,7069
• Citation: 446 S.W.2d 14
• Parties: LIVE OAK COUNTY, Appellant, v. LOWER NUECES RIVER WATER SUPPLY DISTRICT, Appellee. . Beaumont
• Court: Texas Court of Appeals

Page 14

446 S.W.2d 14

LIVE OAK COUNTY, Appellant, v. LOWER NUECES RIVER WATER SUPPLY DISTRICT, Appellee.

No. 7069.

Court of Civil Appeals of Texas Beaumont.

Sept. 25, 1969.

Harry J. Schulz, Three Rivers, W. L. Hardwick, George West, James C. Watson, Corpus Christi, for appellant.

Allen Wood, J. M. Burnett, Corpus Christi, for appellee.

KEITH, Justice.

The appeal is from a take-nothing judgment entered after a jury verdict adverse to Live Oak County had been received and accepted by the trial court. Since this is the fourth appeal ¹ involving an order of the Commissioners Court of Live Oak County entered on November 26, 1957, a review of the background of the case and the earlier decisions will be helpful to an understanding of the issues raised by this appeal. The appellant, Live Oak County, will be referred to herein simply as the 'County.' The appellee is a conservation and reclamation district created under the provisions of Article 8280--134, Vernon's Ann.Civ.St., adopted pursuant to the provisions of Article 16, Section 59 of the Constitution of the State of Texas Vernon's Ann.St. It will be referred to hereinafter simply as the 'District.'

I. General Background

Although created by Legislative enactment in 1949, the District was still a 'paper district' until after litigation involving its boundaries was completed early in 1955. Lower Nueces River Water Supply District v. Cartwright, 274 S.W.2d 199, 207 (San Antonio, Tex .Civ.App., 1954, error ref. n.r.e.). Immediately thereafter, District began the construction of the Wesley E. Seale Dam, an $18,000,000 project, across the Nueces River, the dam itself being located in Jim Wells and San Patricio Counties. The impounded waters created Lake Corpus Christi, which inundated the road and bridge involved in this suit, situated in Live Oak County upstream from the new dam.

In the Injunction Appeal (312 S.W.2d at 698), the court described the road, prior to the closing of the gates on the dam, in these words:

'The Lagarto bridge and road in question are located near the upper reaches of the present Lake Corpus Christi. The road, speaking generally, extends from a point on State Highway 9, across the Nueces River to the farm community of Lagarto. The Lagarto road in question is a caliche road, maintained by the County. The facilities for crossing the Nueces River itself and arms of the present Lake Corpus Christi on the Lagarto road consist of a steel trestle bridge over the main channel of the river and approaches, and two wooden bridges or structures over arms of the lake. * * * The road serves the sparsely populated Lagarto farm and ranch community on the west side of the Nueces River, and accommodates those persons who want to pass from east to west over the Lagarto road to Lagarto or from Lagarto to the east.'

We attach hereto a schematic drawing showing the location of the old Lagarto road after the gates of the dam had been closed and the reservoir filled. The alternate routes available, which are mentioned in the Injunction Appeal, are shown thereon.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The County, fully realizing that when the dam was completed the Lagarto road and bridge would be flooded, conferred from time to time with District officials, but no agreeable solution to the problem was found. On September 13, 1957, District requested that the County remove the steel bridge and the relief structures, invoking Article 7585, V.A.C .S., and stating that the dam would be completed in December, 1957. It is to be noted that the District said nothing about either paying the cost of removal or paying the cost of alternate structures or facilities resulting from such 'change.'

The County did not take the action demanded by the District, but on November 26, 1957, adopted the order which has been the basis of the litigation between the parties since that time. The order is lengthy and is summarized, to some extent, in the Summary Judgment Appeal (396 S.W.2d at 457). Omitting the lengthy preamble of the order, we reproduce the operative language thereof in the footnote. ²

Shortly thereafter, the exact date not being available to us, the County instituted its suit for injunction which now brings us to a consideration of the several appeals previously noted, to which we now turn.

II. Analysis of Prior Litigation

A. The Injunction Appeal (312 S.W.2d 696):

The temporary injunction procured by the County restrained the District from closing the remaining openings in the Dam, or performing any other act which would have the effect of inundating the Lagarto road, pending a final hearing on the merits of the case. As was said: 'The principal object of the suit is to compel the District to construct or pay for the construction of a high level bridge at the location of the Lagarto road over the water reservoir to be created by the dam' (312 S.W.2d at 697). The San Antonio Court of Civil Appeals, in a per curiam opinion, invoking the balancing of equities doctrine, reversed the order granting the temporary injunction and it was dissolved (p. 701).

Hopefully seeking to aid the two competing governmental agencies in the settlement of their dispute, the court also made several other holdings which are of interest: ³

(1) Article 7585, V.A.C.S., authorized the District to inundate the roadway and bridge and the provisions of Article 6703, V.A.C.S., relating to changes in county roads and relied upon by the County, was inapplicable (p. 699).

(2) 'Under the above quoted provisions of the statute (Article 7585), the appellee (County) was charged with notice that it was its duty to remove said bridge structures And change said road.' (Id. All emphasis has been supplied unless otherwise indicated.)

(3) Notwithstanding the provisions of Article 7585 providing that the expense of making the change in the road shall be paid by the District, such statute 'does not authorize appellee (County) to demand that payment be made in advance, as a condition precedent to the right of appellant (District) to construct its dam, lake and reservoir and thereby submerge said road' (pp. 700--701).

(4) Roads and bridges, although constructed by a county, are property of the State, not the county, and the Legislature had the power to authorize the inundation of the road in question (p. 701).

B. The Venue Appeal (352 S.W.2d 139):

Chief Justice Murray of the San Antonio Court, holding that the County could not maintain venue in Live Oak County under Subdivisions 9, 14, and 19 of Article 1995, V.A.C.S., affirmed the judgment transferring the case to Nueces County. He, too, made certain other findings for the guidance of the trial court upon a trial on the merits, to which we now turn:

(1) He reiterated the prior holding that when the dam has been completed, Article 7585 'makes it the duty of the Commissioners' Court of the County to re-locate a road that is to become a part of a reservoir or lake * * *' (p. 141).

(2) 'It (Article 7585) also makes it the duty of the Water District to pay the cost of removing bridges and other property interfering with the construction of the reservoir, As well as the cost of building the relocated road' (Id.).

(3) The provisions of Article 7585 govern 'whatever rights the County has in this matter and whatever duties the Water District owes, * * *' and 'damages done to the old Lagarto Road and bridge will be immaterial' (Id.).

C. The Summary Judgment Appeal (396 S.W.2d 450):

The Corpus Christi Court made it very plain that the prior decisions in this case were to govern the proceedings on the new trial, saying:

'However, (upon remand) the lower court must accept the essential holdings of the San Antonio Court of Civil Appeals in the two prior appeals hereinbefore mentioned and of this Court in the instant appeal as the law of the case.'

Having determined that the trial court erred in entering the summary judgment in favor of the District and against the County, the Corpus Christi Court, as had the other court in the two prior appeals, made several other holdings which we will review. One of these included these words:

'In reversing the judgment and remanding the case for new trial, we desire to make it clear that The material issues of facts herein are * * * to be decided in the usual way' (p. 459). ⁴

The Court's holdings, As the law of the case, included these:

(1) Article 7585, recognizing that roads might be inundated by the construction of dams, charged the Commissioners Court 'with the duty of making the change in the road or bridge' (p. 453).

(2) 'The district has the authority to decide that the road will be inundated but does not have the authority to decide what change is to be made in it' (Id.).

(3) 'The county cannot defeat the district's right to * * * construct its dam, reservoir or lake, * * *' (Id.).

(4) '* * * but can and must determine the change to be made in the road or bridge on account of its inundation, * * *' (Id.).

(5) '* * * and the district must pay for such changes which are legally made' (Id.).

(6) The 'change' referred to in Article 7585 may be accomplished by elevation of the roadway and bridge as well as making a horizontal change therein (pp. 453 and 457).

(7) Only the Commissioners Court can make the change in the roadway, not the District; and, neither the District Court nor an Appellate Court can substitute its judgment for that of the Commissioners Court (p. 454).

(8) 'The Statute (Article 7585) does not contemplate the giving of unbridled authority to the county, and its commissioners court should act reasonably and prudently in determining the change to be made and the cost of same, without abusing the discretion placed in it' (p. 456).

(9) 'In this case, where the order of the County Commissioners Court is questioned collaterally, only a contention that it is Void can be considered' (p. 457).

(10) The County did not have the right to demand payment in advance from the District as a...