"The East fork of the Trinity river runs in a southerly direction across Rockwall county, and at a certain point is crossed by the line of the Missouri-Kansas-Texas Railroad Company. The right of way has been owned and the line of road constructed and maintained a great many years. At the point where the railroad crosses the river, both above and below, on the west side, there is considerable bottom which has always been subject to frequent overflows. In times of such overflow the water has spread out over this bottom, and the present structures of bridge across the river and embankment across the bottom have been adequate and altogether sufficient for the company's use.
"Rockwall county levee improvement district No. 3 is a levee improvement district organized under chapter 146, Acts Thirty-Fourth Legislature (1915), being Vernon's Civ. Stat. Supp. 1918, arts. 5530-5584d, with the rights and powers of a conservation and reclamation district under Vernon's Texas Civil Statutes 1922 Supp. arts. 5107 — 1 to 5107 — 276.
"The district as organized embraces about 1,800 acres of land lying in the bottom upon the west side of the river immediately above and below the railroad company's tracks. The river forms the east boundary line of the district. This suit was instituted by the levee district for the condemnation of a section of the railroad company's right of way for the purpose of constructing a levee across the right of way; the levee to extend north and south approximately parallel with the river at a mean average distance of about 600 feet inland from the river, the levee to be about 4 miles long and to cross the railroad right of way 1,100 feet west of the west bank of the river, the purpose of the levee being, of course, to protect that portion of the district lying west thereof from the overflow waters of the river.
"Upon the proper petition therefor, commissioners to appraise damages were duly appointed. Two of these commissioners awarded damages to the railroad company in the sum of $600, and one in the sum of $600 actual and $35,000 exemplary damages. Upon objection to the decision of the commissioners by the company, the case was entered upon the civil docket of the county court, where the railroad company filed its motion asking the court to reject the assessment and decision made by the commissioners. This motion being refused, the railroad company filed an answer, and the cause was tried before a jury, resulting in a judgment for the levee district
condemning the land and in favor of the railroad company in the sum of $2,104 damages. The cause was appealed to the Court of Civil Appeals by the railroad company, where the judgment was affirmed (266 S. W. 163), and the questions hereinafter discussed are before us upon writ of error to the judgment of that court.
"We fully agree with the Court of Civil Appeals that the decision of the commissioners, appointed to assess the damages sustained by plaintiff in error, was valid though not unanimous. The case was one for trial in the county court under the statutes.
"After the introduction of the evidence, the defendant presented to the court its written request that the cause be submitted to the jury upon special issues as provided by the statute. Vernon's Sayles' Ann. Civ. Stat. art. 1984a. At the same time the defendant also presented certain special issues which it requested the court to submit to the jury. The trial court, conceiving that there was but one issue for the jury to consider, refused the request for the submission of special issues, and submitted the case upon a general charge. The Court of Civil Appeals, agreeing with the trial court as to the singleness of the issue of fact to be tried, refused to reverse the case upon this point, and held the error to be harmless. For this holding the judgments of both courts must be reversed, and, for reasons hereinafter stated, the cause must be remanded for another trial.
"Article 1984a of the statute provides: `In all jury cases the court, upon request of either party, shall submit the cause upon special issues raised by the pleadings and the evidence in the case. * * *'
"This statute has been held to be mandatory, and, if the case is one for the jury at all, it must upon request by either party be submitted upon special issues rather than a general charge. Galveston, etc., Co. v. Jackson, 92 Tex. 638, 50 S. W. 1012, 51 S. W. 330; Guffey, etc., Co. v. Dinwiddie (Tex. Civ. App.) 168 S. W. 439; Gordon Jones, etc., Co. v. Lopez (Tex. Civ. App.) 172 S. W. 987; Shaw v. Garrison (Tex. Civ. App.) 174 S. W. 942; Dorsey v. Cogdell (Tex. Civ. App.) 210 S. W. 303; Watson v. Corley (Tex. Civ. App.) 226 S. W. 481.
"That the case is one which could properly be submitted upon special issues cannot be doubted. There was at least the issue of damages to that portion of the right of way to be occupied by the levee company's dike, actually submitted to the jury; but the singleness or multiplicity of issues involved has nothing to do with the question. The statute makes no such distinction.
"Of course it would follow from the above that we are of the opinion the defendant's request for a summary instruction was properly refused. This request was predicated upon the theory that the levee district as organized has no authority to condemn property for the purpose of protecting low lands from overflow, as is evidently contemplated by the levee district in this case, but that in effect its powers of condemnation were limited to the construction of levees along the banks of rivers, creeks, or streams, to prevent the overflow of such rivers, creeks, or streams; in other words, to improve or conserve the stream. We approve the holding of the Court of Civil Appeals upon its interpretation of the statute. Obviously the Legislature had in mind, at least in part, if not wholly, the protection by this method of valuable agricultural lands that otherwise would be of small value or wholly worthless; and especially is this view strengthened when it is remembered such levee districts are given the rights and powers of conservation and reclamation districts also, for the mere asking.
"It also follows that we rule against plaintiff in error on its contention that the Act of April 1, 1915, being chapter 146, General Laws Thirty-Fourth Legislature, 229, is void as being in contravention of the Constitution, which forbids the inclusion of two subjects in a bill.
"If that bill and its title do contain two subjects, they certainly are germane to each other, and therefore the matter is not within the condemnation of the Constitution. McMeans v. Finley, 88 Tex. 521, 32 S. W. 524; Breen v. Texas & P. R. Co., 44 Tex. 305; Ex parte White, 82 Tex. Cr. R. 85, 198 S. W. 583. The supposed vice in the act, and in its title as well, is that it embraces two subjects, to wit, authority of the commissioners' court to create and establish levee improvement districts with certain enumerated powers, and also validating bonds issued by districts theretofore organized.
"The point most strongly urged by plaintiff in error arises out of its contention that, if the levee district is authorized by law to condemn its property and thereby take, injure, or destroy the same, such district will be liable to the company in damages, not only for the value of that portion of its right of way actually taken, but for the other damages that might be done to its property as well. The point is thoroughly presented in every conceivable way, and is accentuated by the court's charge, as follows:
"`Gentlemen of the jury, the court charges you that the burden of proof is upon the plaintiff to show by a preponderance of the evidence that the use of a part of the railroad right of way for levee will not destroy or materially injure its use as an integral part of the railway, or be detrimental to the public.
"`The court further charges you that under the law the reclamation and protection of lands subject to overflow by reason of storm and flood waters in this state is a public right, and that a levee improvement district, created for such object or purpose, is a governmental agency, and, as such, has power and authority to acquire an easement or right of way to, over, and through any and all lands, waters, or lands under waters, private or public (except land and property used for cemetery purposes), within, bordering upon, adjacent, or opposite to such district, necessary for making, constructing, and maintaining all levees and other improvements for the improvement of a river, or creek, or stream...
