Missouri-Kansas-Texas R. Co. of Texas v. Williams

• Decision Date: 11 April 1928
• Docket Number: (No. 3539.)
• Citation: 5 S.W.2d 575
• Parties: MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. WILLIAMS.
• Court: Texas Court of Appeals

5 S.W.2d 575

MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. WILLIAMS.

(No. 3539.)

Court of Civil Appeals of Texas. Texarkana.

April 11, 1928.

Rehearing Denied April 19, 1928.

Appeal from District Court, Grayson County; Silas Hare, Judge.

Suit by Corda B. Williams against the Missouri-Kansas-Texas Railroad Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

The suit was by the appellee for damages sustained to his whole farm, in the discomfort and unpleasant use and occupancy of same as a home, for tillage and for pasture of cattle, and in the pollution of the waters of the creek running through it, immediately resulting from the alleged condition and use of appellant's premises on which it maintained its terminal yards and machine shops, constituting a nuisance. The petition, after averment of ownership of the land, alleged:

"That he has been such owner since January 1, 1915. That he is a married man, and lives on the land, and has lived on the same as his home for many years, and at all times complained of in the petition.

"That said land is specially adapted to farming and stock raising; that it has considerable tracts of fine tillable soil thereon, and other lands not good for tillage, but producing grass and first-class for pasturage; that it has skirts of timber ample for firewood, fencing material, and for shelter for the stock.

"That on the east side of the said tract of land and running through the pasture land from north to south is a creek or running stream of water known as Corn creek.

"That the said stream has its origin some miles south of the said farm, arising in a number of heads spreading out over a considerable basin and territory.

"That the defendant has purchased and now owns and occupies a large part of the said basin. It has erected and now maintains many railroad tracks, roundhouses, oil tanks, offices, residences, machine shops, and outbuildings pertaining thereto on the land constituting the said basin. That the said tracks, shops, and houses are used by the said defendant for the purpose of cleaning, repairing, and building rolling stock for its various railroad tracks. That it is used also for switching purposes and for the dumping or unloading of refuse and decayed matter. That it employs a great number of men and animals in the carrying on (of) its said business, who live on the said premises a great part of the time, and some of them at all times. That there is a great deal of waste oil and fuel which necessarily spreads out over the said land. That there is a great deal of water used (in) the washing of defendant's engines and railroad cars that flows out over the said land. That the defendant has erected in connection with the said plant many oil tanks in which to store a great deal of crude oil, the inevitable waste from which spreads over the said land and soaks into the soil.

"It has erected many privies, water closets, and outhouses in which is deposited the refuse of the human body, and the flow of water from and through the said privies and outhouses flows out and over the said land. That the said refuse, oil, water, and sewerage flowing over the said land follows its natural course into said creek above described, and continuously flows therein, and pollutes and poisons the water in said creek at all times. That, by reason thereof the water and the creek on plaintiff's land, as above described, is continuously coated with oil and sewerage that discolors it, causes a great stench to continuously arise therefrom, and renders the water poisonous to that extent that it kills cattle, horses, and other animals drinking therefrom; that it has killed and destroyed all fish therein; and, after large rains this refuse is spread out over the grass, rendering it unfit for use, and poisonous to stock feeding thereon. That by reason of this pollution the usefulness of the said creek is entirely destroyed, and the use and occupancy of the said farm is rendered unpleasant, unsightly, and nauseating, which greatly reduces the value of the said farm and property.

"The defendant has made preparation to continuously use its said property for the purposes above set out. That it has spent many hundreds of thousands of dollars in making permanent and lasting improvements for preparation for future use, and that therefore the said injury is permanent, continuous, and lasting."

The defendent pleaded general denial and the statute of two years' limitation, and specially answered with counter allegations that the injuries claimed by the plaintiff came directly through drainage and leakage from sources other than the defendant's premises, from schoolhouses, slaughter pens, dairies, and many private houses that had no sewerage.

The facts alleged by the plaintiff and above set out appear to be fairly established by the evidence. The appellee's land is located one and a half miles south from the terminal yards. Corn creek runs through it. The buildings, shops, tracks, machinery, washing plants, and oil tanks constituting the terminal yards are, as admitted, extensive and permanent in character. They cover about 425 acres. Branches of Corn creek adjoin the land. The terminals were finished, and operation of them was begun August 1, 1923. The discharge of deleterious substances from uses and conditions of the premises in the operation of the terminal yards, and the injury to appellee's premises therefrom, began to occur, according to evidence in behalf of the appellee, about April, 1925. The matter and water from the toilets and bathing rooms flow into the septic tank provided by the company, and thence to Corn creek. The waters used in cleaning stock cars and the engine boilers and cars, as well as the oil leakage, flow through drains provided and into a main drainage ditch that leads through the yards and into Corn Creek. These substances to some extent intermingle with the waters of the creek and flow down it. There is daily use of water in cleaning and washing boilers and cars. There is daily use of oil. The nuisance complained of, as proven, has constantly and regularly occurred to the date of the trial, affecting the market value of the plaintiff's farm. The suit was filed May 31, 1926.

The jury answered the following special issues:

"(1) Did the construction and operation of the defendant's terminal yards in question pollute and poison the water in Corn creek on plaintiff's premises to the extent that same was thereby rendered unfit for stock to drink? Answer: Yes.

"(3) Did the pollution and poisoning of the water, if you find it was polluted and poisoned, on plaintiff's premises occur before May 30, 1924? Answer: No.

"(4) Did the pollution and poisoning of the water in Corn...