Nueces County Drainage & Con. Dist. No. 2 v. Bevly

• Decision Date: 06 February 1975
• Docket Number: No. 905,905
• Citation: 519 S.W.2d 938
• Parties: NUECES COUNTY DRAINAGE AND CONSERVATION DISTRICT NO. 2, Appellant, v. W. M. BEVLY, Appellee.
• Court: Texas Court of Appeals

Page 938

519 S.W.2d 938

NUECES COUNTY DRAINAGE AND CONSERVATION DISTRICT NO. 2, Appellant, v. W. M. BEVLY, Appellee.

No. 905.

Court of Civil Appeals of Texas Corpus Christi.

Feb. 6, 1975.

Supplemental Opinion March 6, 1975.

C. Edwin Prichard, Jr., Prichard, Peeler & Smith, Corpus Christi, for appellant.

Findley L. Edmonds, Meredith & Donnell, Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

This is a suit for permanent injunction brought by W. M. Bevly (Bevly) against the Nueces County Drainage and Conservation District No. 2 (District) to restrain the District from enlarging an existing drainage ditch, located partly within and partly without the District. Suit was instituted on May 9, 1973. Following a jury trial, judgment was rendered which permanently enjoined the District from enlarging the ditch. The District has appealed. The controlling question presented is whether or not the proposed enlargement of the ditch will result in a 'taking' of Bevly's land in the constitutional sense.

The District includes, among other areas, all of the City of Robstown, Texas. Sometime before suit was filed, the City of Robstown announced plans for the construction of an interior drainage system in the City, and the District informed the public that it proposed to connect such drainage system with an existing ditch operated by it, designated as Ditch 'C', and to enlarge the ditch in order to take care of the volume of water that would then enter the ditch as a result of the construction of the interior drainage system by the City. The ditch, as it then existed, extended eastward from the City to Oso Creek, was 40 feet wide at the top, 15 feet wide at the bottom, and had been in existence for many years. If enlarged in accordance with the plans, it will be 86 feet wide at the top, 40 feet wide at the bottom, and about 12 1/2 feet deep.

The place where the ditch releases its waters into Oso Creek is outside the boundaries of the District. That portion of the ditch west from Oso Creek to the east boundary of the District covers a distance of several hundred yards, and is on land that is owned in fee by the District. The remaining portion of the ditch, west from the east boundary of the District to the City of Robstown, covers a distance of several miles, is on an easement, and is located entirely within the boundaries of the District.

Bevly owns five separate tracts of land (about 1,000 acres) to the southeast of the place where the ditch empties into Oso Creek. Three of the tracts front on Oso Creek and the other two are crossed by the Creek. All of the tracts are outside the boundaries of the District, and are from five to nine miles east and southeast of the east boundary of the District. The tract closest to the place where the ditch intersects Oso Creek is about five miles downstream.

Bevly alleged that the District, if allowed to proceed with its plans, will take his lands in contravention of Section 17, Article I, of the Texas Constitution, Vernon's Ann.St. He prayed that the District be permanently enjoined from enlarging, or in any way changing, Ditch 'C'.

The jury, among other findings, found that the discharge into Oso Creek from the enlarged Ditch 'C' will be a producing cause of erosion of Bevly's five tracts of land, and will also be a producing cause of damage to the tracts by flooding 'outside of the present flood plain to a degree greater than will occur if Ditch 'C' is not enlarged'.

The judgment of the trial court, in part, decreed:

'. . . NUECES COUNTY DRAINAGE AND CONSERVATION DISTRICT NO. 2, its commissioners, officers, employees and agents be, and they hereby are, permanently enjoined and restrained from enlarging the present drainage ditch, commonly referred to in the drainage plans of Defendant as 'Ditch C', as it existed on December 17, 1973, the date the jury verdict was received and ordered filed, . . .'

The trial judge, in his conclusion of law No. 1, which is set out in the judgment itself, concluded:

'1. Based upon the jury findings, the proposed enlargement of Defendant's Ditch 'C' will result in the 'taking' of Plaintiff's property in violation of Section 17 of Article I of the Constitution of the State of Texas; . . .'

The District, in its first point, attacks the judgment for the reason that the evidence does not show that the proposed enlargement of Ditch 'C' will result in a 'taking' of Bevly's land, and argues that since there was no 'taking' of the land the trial judge was not precluded from balancing the equities of the parties. Bevly has challenged the point on the ground that it is multifarious because it embraces more than one point of error. In disposing of that challenge, we apply the rule announced in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943). The rule so established, simply stated, is that if a point is sufficient to direct the Court's attention to the matter complained of, the Court will look to the point and the statement and argument thereunder to determine the question of reversible error. Under the rule of the Fambrough case, the point is sufficient. We will consider it.

Bevly further contends that the point should be overruled because the proposed enlargement of Ditch 'C' will result in an unlawful taking of his land for public use and that since such taking is void, it should be enjoined. He argues that as the District's right of eminent domain is restricted to the area lying within its boundaries, and since all five tracts of land are outside the District's boundaries, that the District simply has no power of eminent domain over his land. He maintains that the proposed enlargement of Ditch 'C' will greatly increase its capacity for delivering quantities of water into Oso Creek, the result of which will cause the Creek to flood when it ordinarily would not; that the planned enlargement of Ditch 'C' will result in irreparable damage to his land because of an increased volume of water reaching his land at an accelerated rate and standing thereon, and because of increased erosion of the land bordering the Creek.

It is clearly established by the evidence that the construction of the interior drainage project by the City, and the enlargement of Ditch 'C' by the District, will give substantial drainage relief to the more than 10,000 inhabitants of the City of Robstown; will prevent considerable damage to both public and private property in the City; and will relieve health hazards in the City caused by present flooding due to inadequate drainage facilities. At the time of trial (December, 1973), work on the planned interior drainage project had not been completed, and Ditch 'C' had not been enlarged.

Bevly's expert witness, Dr. Christopher C. Mathewson, an assistant professor of geology at Texas A & M University, testified that Oso Creek is presently out of balance, that it has been out of balance continuously since about 1915; that the Bevly tracts of land have already sustained substantial damage because of prior flooding and erosion; and that those tracts will be further damaged by flooding and erosion if the planned improvements are made, since the velocity of the water which now enters the Creek from the existing Ditch 'C' will be greatly increased. He did not calculate the volume of water that Oso Creek now carries or could carry if Ditch 'C' is enlarged. He said that when there are heavy rains, run-off water enters the flood plain of Oso Creek from the City of Robstown; from agricultural lands and oil fields; from other parts of the District; and from Corpus Christi, the 'Corpus Christi Ditch' and the 'Clarkwood Ditch', all of which are outside the boundaries of the District.

Dr. Mathewson further testified that under conditions existing at the time of trial, the five Bevly tracts will be damaged every time Oso Creek floods, which can be expected to occur on the average of every one and one-half years, and that there will be erosion of the creek banks where each tract borders the Creek, erosion of topsoil caused by flooding of the surface of the lands, and flooding of crops. He could not determine how much of Bevly's land was being damaged either in terms of the quantity of creek banks and topsoil lost by erosion, or in terms of dollars lost because of flooding of crops. He stated that such damage could be calculated, but that it would be time consuming and would requisite the assembling of 'hundreds of years of information' at 'phenomenal cost'. He was note asked to calculate either the 'cost' or the amount of damage.

Dr. Mathewson also said that the amount of water which will empty into the creek by an enlarged Ditch 'C' will not 'alone' flood Bevly's land, that the effect of such enlargement will increase 'the already flooded conditions downstream on Mr. Bevly's property', and 'it's just that it's getting to the Oso Creek faster because its going out of Robstown and it's not lying around in Robstown and then slowly flowing downstream'. He did not say what portion of the total damages sustained by Bevly would be attributable to the proposed enlargement of Ditch 'C' and how much of such damages would be attributable to the volume of water now entering the Creek from Ditch 'C', or from other sources that deposit run-off waters into the Creek.

The District's expert witness, Mr. Eugene Urban, the engineer who designed the proposed drainage system under attack, testified that it was necessary that Ditch 'C' be enlarged as an outfall ditch for the City of Robstown's interior drainage system; and that the completion of the proposed drainage project will not cause any different effect downstream than that which was already taking place . He further testified that Ditch 'C', if enlarged, could run brimful, which, of itself, still would not flood the Bevly land.

Both Dr. Mathewson and Mr. Urban agreed that there were many factors other than Ditch 'C' which had a bearing on the fact that Bevly's tracts are now being flooded, and...