Riley v. Davidson, 11782.

• Decision Date: 25 July 1946
• Docket Number: No. 11782.,11782.
• Citation: 196 S.W.2d 557
• Parties: RILEY v. DAVIDSON.
• Court: Texas Court of Appeals

Page 557

196 S.W.2d 557

RILEY v. DAVIDSON.

No. 11782.

Court of Civil Appeals of Texas. Galveston.

July 25, 1946.

Appellant's and Appellee's Rehearing Denied October 3, 1946.

Appeal from District Court, Brazoria County; A. R. Stout, Judge.

Suit by John Davidson against G. H. Riley for damages for cutting and removing a pipe line from road and for injunction restraining future cutting and removing of pipe line. The defendant filed a cross-action. From the judgment, the defendant appeals.

Partly affirmed and partly reversed and rendered.

John C. Henderson and Cleveland Davis, both of Angleton, for appellant.

Richard J. Higgins and W. David Evans, both of Angleton (Robt. M. Lyles, of Angleton, of counsel), for appellee.

CODY, Justice.

This suit was brought by appellee against appellant to recover damages for the cutting and removing of a pipe line which had been laid by appellee in a country road in Brazoria County, and for an injunction to restrain appellant from cutting and removing appellee's pipe line in the future. Appellant answered by general denial, and brought a cross-action for a mandatory injunction to require appellee to remove his pipe line from said road.

In a trial before the court judgment was rendered in favor of appellee in the main action and against appellant in the cross-action, from which judgment this appeal is prosecuted.

There is little if any conflict in the evidence, and a portion of the facts are stipulated. The evidence showed: that appellant was the owner of a 63-acre tract in Brazoria County, and in June, 1942, subdivided a portion of the tract, the plat of which was approved by the Commissioners' Court and ordered recorded. Upon the face of the plat were the following words, which were signed by appellant: "I, G. H. Riley, sole owner of the land which is shown on the attached map and subdivision as the Riley Oyster Creek Subdivision No. 1, out of the J. E. Groce Survey, Abstract No. 66, in Brazoria County, Texas, do hereby adopt said plat and subdivision, and dedicate the roads shown thereon to the public."

That about December 1, 1945, appellee laid beneath the surface of the road so dedicated to the public an 1½ inch pipe to supply water to two lot owners who had purchased their lots from appellant, and it was shown the appellee was willing to supply water for general domestic purposes to whosoever would pay therefor. That about January 8, 1946, appellant who had theretofore made written demand on appellee to remove the aforesaid pipe line from the road in question, cut and removed a portion thereof, thereby rendering the pipe line ineffective. That the appellant owned the land abutting on both sides of the road at the point at which the pipe line was cut and removed. That appellee repaired the pipe line, and appellant again cut it and removed a portion thereof, whereupon this suit was instituted by appellees aforesaid.

It was stipulated that appellee was and is maintaining and operating the water line as an individual, and that he has no authority or permission from the State, or from any administrative subdivision of the State to operate the water line for the purpose of furnishing drinking water for hire.

Appellant predicates his appeal upon four formal points, but in substance the points relied on by him boil down to two, as follows:

I. That the court erred in restraining appellant from cutting the water line, and removing the pipe, as the water line was admittedly being operated by appellee in violation of the health laws of the State (Art. 4477-1, sections 11 and 12) in that it was constructed without first having obtained the approval of the Health Department, etc., and that this is true because (1) equity will not grant an injunction which would aid the performance of an unlawful act; and (2) that appellee, as a law violator, does not come into court with clean hands.

II. That the court erred in restraining appellant from removing the pipe from the road because the dedication of the road in question to the public did not vest in the public the right to use the road for transportation of water by laying pipes therein. So (1) the action of appellee in making the use of the road complained of was a continuing trespass by appellee and the appropriation by him of appellant's land; and (2) such use of appellant's land without his consent was a taking of his private property for public use without his consent and without adequate compensation.

We sustain, at least in part, appellant's first point. We have concluded that the court erred in the judgment in so far as it decreed that appellant is permanently enjoined from removing, cutting, etc., any pipe line belonging to appellee on or under the road right of way as dedicated to the public.

Art. 4477 — 1 was enacted in 1945. Section 11(a) provides that "No district * * * or individual shall furnish to the public any drinking water for which any charge is made, unless the production, processing, treatment, and distribution is at all times under the supervision of a competent water works operator holding a valid certificate of competency issued under the direction of the Texas State Department of Health."

Section 12(a) of the same article provides that "Every person * * * contemplating the establishment of any drinking water supply * * * for public use shall, previous to construction thereof, submit completed plans and specifications therefor to the State Department of Health and the said Department shall approve same; provided said plans conform to the water safety and stream pollution laws of this state. The said water supply * * * shall be established only after approval has been given by the State Department of Health."

The appellee's act in establishing the water supply here in question was illegal, though apparently without any intention to violate any law, and seemingly in ignorance that there was any health law with...