Live Oak County v. Lower Nueces River Water Supply Dist.
| Decision Date | 23 September 1965 |
| Docket Number | No. 78,78 |
| Citation | 396 S.W.2d 450 |
| Parties | LIVE OAK COUNTY, Texas, Appellant, v. LOWER NUECES RIVER WATER SUPPLY DISTRICT, Appellee. |
| Court | Texas Court of Appeals |
James C. Watson, of Keys, Russell, Watson & Seaman, Corpus Christi, Dan Moody, Jr., Austin, Harry J. Schulz, Three Rivers, W. L. Hardwick, George West, for appellant.
Allen Wood, of Fischer, Wood, Burney & Nesbitt, Ralph Wood, of Wood & Boykin, Corpus Christi, for appellee.
This appeal is from a summary judgment in favor of appellee, Lower Nueces River Water Supply District, sometimes hereafter called 'District', that appellant, Live Oak County, Texas, sometimes hereafter called 'County', take nothing.
County's cause of action originally was to recover payment from District for a proposed road and bridge across Lake Corpus Christi due to the inundation by the lake of an existing County (Lagarto) road and a bridge when the Wesley Seale Dam was completed and its gates closed; and by amended pleadings, alternatively, for declaratory judgment that District is liable to pay for the new road and bridge when completed.
Preliminary proceedings in this case have twice been before the Fourth Court of Civil Appeals at San Antonio. See 312 S.W.2d 696 (), involving dissolution of a temporary injunction against District, and 352 S.W.2d 139 (Tex.Civ.App.1961, wr. dism.) on plea of privilege District prevailed on both of those appeals.
On this appeal, County contends by five points of error that the summary judgment herein was improperly granted for reasons, in substance, as follows: (1) the word 'change' in Article 7585, Vernon's Ann.C.S., does not preclude County from elevating the inundated roadway at the same, or approximately the same, location, (2) the order of the County Commissioners Court determining that the inundated road should be changed by elevating it along the present route is not arbitrary, capricious nor void, and absent a direct attack may not be ignored or reviewed in this proceeding, (3) to the extent that County's rights and District's obligations depend on whether elevation of the Lagarto Road is practical, feasible or necessary, genuine issues of material facts are presented, (4) insofar as such rights and obligations depend on a determination in this suit upon whether the Commissioners Court of County has properly exercised discretionary authority, genuine issues of material fact are presented, and (5) the take-nothing summary judgment denies County a determination by declaratory judgment as to the extent and conditions of District's obligation to pay the expense of elevating the Lagarto Road.
District answers County's points with basic contentions that (1) the word 'change' as used in Art. 7585, V.A.C.S., menas change of course, route, location, or to vacate or abandon, rather than change in elevation or raising of the affected road, (2) the order of the Commissioners Court of County concerning elevation of the Lagarto Road is not binding and enforceable against District, and by Reply Brief that (3) affirmance of the summary judgment will not be res judicata as to any relief to which County might be entitled except as to its claim of right to compel District to construct or pay for construction of a high level bridge or causeway over Lake Corpus Christi at or near the old Lagarto Road.
Upon the record now presented the summary judgment in favor of District must necessarily rest either upon the premise that the word 'change' as used in Art. 7585, V.A.C.S., does not permit elevation of the old Lagarto Road or that the order of the Commissioners Court of County is void; which last premise would necessarily include a finding that there is no genuine issue of material fact concerning whether the Commissioners Court acted arbitrarily or capriciously.
We have concluded that under applicable rules the take-nothing summary judgment was improperly granted and that the cause should be reversed and remanded for the reasons hereinafter stated.
In connection with the former appeal sustaining District's plea of privilege in this case the Court of Civil Appeals at San Antonio has held as follows:
In connection with the earlier appeal in this case involving dissolution of a temporary injunction, the Court of Civil Appeals at San Antonio has held that Article 7585, V.A.C.S., enacted in 1917 (relating to rights and liabilities of water districts and others such as appellee along or across public highways), was intended as a limitation upon and a restriction of the provisions of Article 6703, V.A.C.S., (relating to changes and alterations of roads generally and to the authority of the Commissioners Court in connection therewith) and that Art. 7585, controls such provisions as are in conflict therewith. 312 S.W.2d 700. The Fourth Court of Civil Appeals found it unnecessary to consider the matter of location of the changed route because it was then concerned only with the respective rights, duties and authority of the parties in the injunction proceeding. The Court also held that County did not have the right to demand payment by District in advance as a condition precedent to District's right to construct the dam, lake and reservoir and thereby submerge said road. In discussing the balancing of equities requiring the injunction to be dissolved the Court said:
'If the gates be closed and Lagarto bridge inundated by the water of the new reservoir, a high level bridge, if ordered, may still be constructed after such inundation, at a comparatively slight additional cost, and, in the interim, only a comparatively few people will be inconvenienced by being required to travel a few more miles to reach points east of the reservoir.' 312 S.W.2d 696, 701. Article 7585, V.A.C.S., reads as follows:
'All persons, associations of persons, corporations, and water improvement or irrigation districts shall have the right to run along or across all roads and highways necessary in the construction of their work, and shall at all such crossings construct and maintain necessary bridges, culverts, or siphons, and shall not impair the uses of such road or highways; provided, that if any public road or highway or public bridge shall be upon the ground necessary for the dam site, reservoir, or lake, it shall be the duty of the commissioners' court to change said road and to remove such bridge that the same may not interfere with the construction of the proposed dam, reservoir, or lake; provided, further, that the expense of making such change shall be paid by the person, association of persons, corporation, water improvement or irrigation district desiring to construct such dam, like or reservoir.'
When Art. 7585, V.A.C.S., was enacted in 1917, the Legislature was presumably aware of the powers and duties of county commissioners courts concerning roads and bridges and that actions of water districts could and probably would interfere with and require changes in existing roads and bridges. The Legislature obviously intended to set out the respective rights and duties of water districts and counties in such circumstances. The Statute recognizes that there would be instances where a roadway ro bridge might be inundated by a reservoir or lake constructed and provided for use of water districts, and provided for such situation. In such event the county commissioners court is charged by the Statute with the duty of making the change in the road or bridge. 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. The county cannot defeat the district's right to inundate the road or bridge or to construct its dam, reservoir or lake, but can and must determine the change to be made in the road or bridge on account of its inundation, and the district must pay for such changes which are legally made.
On the one hand, County contends that under Art. 7585, V.A.C.S., the change in the inundated roadway can be made vertically or horizontally, and, on the other hand, District says that it can be made only horizontally and that a change by elevating the road is not permissible.
Various definitions of the word 'change' from dictionaries and cases are cited to us by the parties in support of their respective positions. County places reliance upon a definition of the word 'change' in Webster's International Dictionary, Second Edition (1934), as follows: In discussing the difference between 'change' and 'alter', the same dictionary says: 'to change (the more general and the stronger term) is to render something essentially different from what it was, even to loss of identity, or the substitution of one thing for another; * * * to alter is to make different in some particular respect as in form or detail, without implying loss of identity; * * *'
District's dictionary definitions of the word 'change' are not substantially different from County's. However, some of the cases from other jurisdictions relied upon by District appear to hold in the legal and factual contexts there presented that the word 'change' as applied to a roadway may mean a change in location, route or course and not a change in grade or elevation. We do not consider any of...
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Live Oak County v. Lower Nueces River Water Supply Dist.
...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. Shortly thereafter, the exact ......
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Central Power & Light Co. v. Holloway, 379
...* * *' The statute actually said 'change'. This Court in considering another aspect of the same case in Live Oak County v. Lower Nueces River Water Supply District, 396 S.W.2d 450 (Tex.Civ.App.--Corpus Christi 1965, n.r.e.), held that a change in location of roadway was not limited to a hor......