Lower Nueces River Water Supply Dist. v. Live Oak County, 13352
| Decision Date | 08 April 1958 |
| Docket Number | No. 13352,13352 |
| Citation | 312 S.W.2d 696 |
| Parties | LOWER NUECES RIVER WATER SUPPLY DISTRICT, Appellant, v. LIVE OAK COUNTY, Texas, Appellee. |
| Court | Texas Court of Appeals |
Wood, Pratt & Boykin, Corpus Christi, Reese D. Wade, Beeville, Fischer, Wood, Burney & Besbitt, Corpus Christi, for appellant.
Dan Moody, Austin, Harry J. Schulz, Three Rivers, W. L. Hardwick, George West, for appellee.
This is an appeal from an interlocutory order of the District Court of Live Oak County granting to appellee, Live Oak County, a temporary writ of injunction, pending final hearing and determination of the cause on its merits, enjoining and restraining the appellant, Lower Nueces River Water Supply District, its officers, agents, employees and contractors from closing the remaining openings in the Wesley E. Seale Dam across the Nueces River, and from doing any other act or thing that would have the effect of inundating any portion of the Lagarto bridge and Lagarto road crossing the Nueces River. 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 careated by the dam. Accordingly, the effect of the trial court's order is not only to enjoin the District from closing openings in the dam and from impounding water in the reservoir pending final decision in the appellate courts after trial on the merits in the trial court, but so to enjoin the District unless and until it constructs or causes to be constructed, at a minimum cost of about $750,000, a high level bridge or causeway over the reservoir to be created by such dam. The high level bridge and its approach structures would be approximately two and one-half miles in length, and would require between eighteen months and two years to complete.
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 chliche 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 annual average 24-hour traffic volume over the Lagarto bridge is 170 vehicles. 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. There is a proposed Baptist Encampment ground, which when completed will also be served by this road.
Should the Lagarto bridge be removed and portions of the Lagarto road inundated by the closing of the dam, the people residing in the Lagarto community will in no sense be isolated or deprived of reasonable access to all points. An alternate route has been provided by the recent construction of Farm-to-Market Road 2287, which is a paved highway leading south from Lagarto to a point on U. S. Highway 359, southwest of Sandia. In going from Lagarto to Mathis by way of this road, ten or fifteen minutes more would be required than by way of the Lagarto road. Road 2287 was constructed by the State Highway Department, Live Oak County furnishing the right-of-way, for the purpose of giving the people of Lagarto a means of reaching Highway 9 and other points east, if and when the old Lagarto road was closed. The Water District has offered to cooperate with Live Oak County in providing additional alternate routes along the west side of the reservoir, but it has declined to cooperate.
The Wesley E. Seale Dam is an $18000,000 project and is now approaching completion. There is evidence in the record to the effect that if the openings in the dam are not closed the entire structure would be subject to great damage by a flood of the Nueces River, caused by heavy rains in its watershed. The Dam has been under construction since 1955, and the parties hereto have realized that when completed the Lagarto road would be inundated. The Water District has heretofore asked the Commissioners' Court of Live Oak County to remove the Lagarto bridge at the Water District's expense, or to allow the District to remove such bridge. If this bridge is not removed it will interfere with the operation of the reservoir and will be a threat to the Dam.
The Water District is asking that the temporary injunction be dissolved and that the Commissioners' Court of Live Oak County be ordered forthwith to remove the Lagarto bridge and approaches and wooden structures, or, in the alternative, that appellee be enjoined from interfering with appellant from doing so.
Appellant predicates this appeal upon several points, but we pretermit discussion of these points in detail. It is the main contention of appellant that, under the provisions of Article 7585, Vernon's Ann.Civ.Stats., and under the facts in this case, it became and it is now the duty of the Commissioners' Court of Live Oak County to change the road and romove the bridge structures which the evidence shows to be upon the ground necessary for the reservoir or lake.
On the other hand, appellee contends that the action of the Commissioners' Court and the rights of the parties in this case are controlled by the provisions of Article 6703, Revised Civil Statutes of Texas, concerning the establishment, maintenance, discontinuance and alteration of county roads; and that appellee has the right to require the construction of a high road or causeway, above the proposed water level, upon the present route of said road, or to require appellant to pay in advance the cost of such construction, which appellee alleges to be not less than $677,000.
We agree with appellant's contention.
Appellant has the power and authority to construct the dam and reservoir here in question, and to acquire all properties and facilities necessary or incidental thereto. Lower Nueces River Water Supply Dist. v. Cartwright, Tex.Civ.App., 274 S.W.2d 199.
For more than two years appellee has had knowledge that the reservoir created by the new dam would inundate the Lagarto bridge structures and a portion of the Lagarto road, and that the road would have to be changed and the bridge structures removed.
Article 7585, supra, provides:
'All persons, associations of persons, corporations, and water improvement or irrigation districts shall have...
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Live Oak County v. Lower Nueces River Water Supply Dist.
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