Miller v. Letzerich
Decision Date | 06 April 1932 |
Docket Number | No. 4834.,4834. |
Citation | 49 S.W.2d 404 |
Parties | MILLER et al. v. LETZERICH et al. |
Court | Texas Supreme Court |
H. R. Clark, of Schulenburg, for plaintiffs in error.
Moss & Lowrey, of La Grange, for defendants in error.
In a suit brought by the defendants in error the trial court enjoined the plaintiff in error Isley and his tenant Miller from repairing an existing levee and ditch, and from extending it, which they were then doing, so as to divert the natural flow of surface waters from the land of Isley on to that of the defendants in error. This judgment was affirmed on appeal, and the case is before us by writ of error. (Tex. Civ. App.) 292 S. W. 560.
This opinion is confined to a discussion of the law of surface waters due to precipitation, while flowing over the ground in a diffused state. The topographic map in the record shows the locus of this controversy, and tells the story of the cause of the complaint better than descriptive words. We have caused a copy of the map, reduced in size and scale, to be prepared to accompany this opinion, for which due acknowledgment is made to the State Reclamation Department.
when this suit was instituted, and which the court ordered destroyed, is shown from "X" to "B." From point "C" to point "X," a distance of about 1,400 feet, the old levee consisted of two embankments, with a ditch between them. The levee and ditch shown from "D" to "F," also on Isley's land, does not appear to be directly involved in this litigation. The evidence discloses, and the contour map shows, that all the rainwater which falls west of the levee from "A" to "C," but for the ditch and levee, would follow the natural slope of the land downward and enter the lake an Isley's land; that none of it would pass on to the Letzerich property until the lake overflowed, and then only in a diffused state. If the construction enjoined by the trial court should be permitted, this water would be excluded from the lake basin and caught by the levee and ditch, and would be caused to flow in a body on to the Letzerich land at point "B." In addition to the waters just named, those which fall west of the levee, between the points "C" and "B," if the enjoined construction should be completed, would be caught by the levee and ditch, and diverted, at least in part, from the normal course of the surface water flow, and, as thus controlled, made to enter Letzerich's land in concentrated form and at a different point, if in fact they would otherwise enter it at all.
The case is clearly one where the upper landowner, if permitted, would not only divert the natural flow of the surface water from his own land to that of the lower tenement, but where he would collect the surface water on his own land in the artificial drainway made by the levees and ditch, and in increased and unnatural quantities cast the same upon his neighbor, to the latter's injury.
Our statute with reference to surface waters, in so far as here involved, reads: "That it shall hereafter be unlawful for any person, firm or private corporation to divert the natural flow of the surface waters in this State or to permit a diversion thereof caused by him to continue after the passage of this Act, or to impound such waters, or to permit the impounding thereof caused by him to continue after the passage of this Act, in such a manner as to damage the property of another, by the overflow of said water so diverted or impounded, and that in all such cases the injured party shall have remedies both at law and equity, including damages occasioned thereby."
This statute, enacted in 1915 (Acts 34th Leg., 1st Called Sess., c. 7), was omitted from the codification in 1925, but was re-enacted in 1927 (Acts 40th Leg. c. 56, § 1), and is now article 7589a, Vernon's Annotated Texas Statutes. It is obvious that the levees and ditch of the plaintiffs in error violate this act. If the act is valid, and is applicable to the constructions complained of, the judgments of the trial court and Court of Civil Appeals should be affirmed.
Plaintiffs in error say, in effect, that they have a vested right in the existence and use of the levee and ditch constructed prior to 1915, when it was lawful to construct them, and the statute here involved cannot have the effect, nor be given the effect, of making the previously constructed levee and ditch unlawful; that their rights thereto are vested, and any law which would deprive them of the value and use of the same, including the right to clean out the ditch and repair the levees, where filled or broken, would be retrospective and void. As shown by the court's decree, Isley and Miller were commanded to restore the surface of the land to its original state only between the points "B" and "X" of the levee, that section under construction when the injunction was served. They were not required to destroy any other portion of the levees and ditch. However, they were enjoined from doing anything with reference to the old levee and ditch which would have the effect of diverting the flow of the surface water from the Isley land to that of Letzerich. They may still retain the old levees and ditch for any lawful purpose, but they cannot use them in such manner as to divert the natural flow of the surface water to the injury of defendants in error.
We think the statute involved valid. Our reasons for this conclusion will now be stated.
In determining the power of the Legislature to pass laws affecting surface water rights for the state generally, we must necessarily consider the effect of the grants made by each sovereignty in their relationship to the subject. Lands in Texas have been granted by four different governments, namely, the Kingdom of Spain, the Republic of Mexico, the Republic of Texas, and the State of Texas. Many millions of acres of land were granted by Spain, Mexico, and the Republic of Texas prior to the adoption by the latter of the common law of England as the rule of decision in 1840. Motl v. Boyd, 116 Tex. 82, 286 S. W. 458.
It is elementary that a change of sovereignty does not affect the property rights of the inhabitants of the territory involved. Kilpatrick v. Sisneros, 23 Tex. 113, 131; Musquis v. Blake, 24 Tex. 461, 466; Airhart v. Massieu, 98 U. S. 491, 496, 25 L. Ed. 213; Jones v. McMasters, 20 How. 8, 21, 15 L. Ed. 805; U. S. v. Percheman, 7 Pet. 87, 8 L. Ed. 604.
After the revolution by which Mexico gained her independence, the Spanish civil law prevailed in connection with the decrees and statutes of the supreme government of Mexico. For four years after the successful struggle of Texas for independence, Texas retained the civil law as the rule of decision. The statutes in force in the Republic of Texas before the introduction of the common law are to be construed in the light of the Mexican civil law, and the validity and legal effect of contracts and of grants of land made before the adoption of the common law must be determined according to the civil law in effect at the time of the grants. 9 Texas Jurisprudence, pp. 301, 302, 303, §§ 4 and 5, p. 304, § 6, p. 315, § 16; White v. Gay's Ex'rs, 1 Tex. 384; Taylor v. Duncan, Dallam, Dig. 514; Means v. Robinson, 7 Tex. 502; Foster v. Champlin, 29 Tex. 22; Mitchell v. Bass, 33 Tex. 260; Courand v. Vollmer, 31 Tex. 397; Berry v. Powell, 47 Tex. Civ. App. 599, 105 S. W. 345; Burr v. Wilson, 18 Tex. 368; Holdeman v. Knight, Dallam, Dig. 566; Sheldon v. Milmo, 99 Tex. 1, 36 S. W. 413; Sparks v. Spence, 40 Tex. 693; City of San Antonio v. Strumberg, 70 Tex. 366, 7 S. W. 754; Hanrick v. Barton, 16 Wall. 166, 21 L. Ed. 350; Sideck v. Duran, 67 Tex. 256, 3 S. W. 264; Motl v. Boyd, 116 Tex. 82, 286 S. W. 458.
From these authorities it is plain, we think, that whatever title, rights, and privileges the inhabitants of Texas received by virtue of land grants from the Spanish and Mexican governments, which were a part of the realty itself or were easements or servitudes in connection therewith, remained intact, notwithstanding the change in sovereignty and the subsequent adoption of the common law as a rule of decision. As to the rights of the owners of coterminous estates under the Mexican civil law, generally it may be said that the rainwater which falls on lands is, so long as it remains on the land, the property of the owner, to do with as he pleases, in the absence of some prescriptive or contractual right. The second rule of the civil law is that lands lower than the coterminous estate owe a service to receive the burden of surface waters which may flow from the higher estate onto the lower, so long as the surface water from the dominant estate reaches the borders of...
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