Robertson v. Robertson
| Decision Date | 29 April 1959 |
| Docket Number | No. A-6763,A-6763 |
| Citation | 323 S.W.2d 938,159 Tex. 567 |
| Parties | Mona ROBERTSON, Petitioner, v. C. B. ROBERTSON, Respondent. |
| Court | Texas Supreme Court |
Hamilton & Deaver, Memphis, for petitioner.
Sanders, Scott, Saunders & Smith, Amarillo, Albert Smith, Lubbock, for respondent.
This suit was instituted by respondent, C. B. Robertson, against Petitioner, Mona Robertson, as an action for a mandatory injunction to compel the removal of an embankment constructed by petitioner and for damages. This is the second appeal of this case. See Tex.Civ.App., 291 S.W.2d 452. Plaintiff is the owner of 100 acres of land located in Hall County, Texas, and described as being the east 80 acres of the southwest quarter (SW/4), and the west 20 acres of the southeast quarter (SE/4) in Section 110, Block 2, T. & P. Ry. Co. Survey. The defendant is the owner of 240 acres of land lying immediately north and northeast of plaintiff's land. Plaintiff contends that the embankment was erected in such a position and height as to divert the natural flow of the surface water from defendant's land across and over plaintiff's land. The land involved is a part of a section of land once owned by the mother and father of the plaintiff. The plat below shows the approximate location of the land involved in this suit. The tract identified as 'Charles B. Robertson's 100 acres' is owned by the plaintiff, and the one identified as 'Mona' is owned by the defendant.
According to plaintiff, the natural flow of the surface waters from the defendant's land and from the land to the north and the east of the defendant is and has always been across the defendant's land and off that land at the southwest corner of the land owned by the defendant. Plaintiff alleged that the defendant diverted the natural flow of the surface water and turned it upon the land of plaintiff; that the defendant first diverted the flow in October 1953, by placing wire plaster board and other material in the mouth of the natural flow of the surface waters on her land causing the natural flow of the surface water to go across the land of plaintiff destroying terraces and cotton to his damage in the net sum of $1,000. The next act alleged is that in December 1953, the defendant caused to be constructed a dike in the mouth of the natural flow of the surface water on her land causing a loss of seven bales of cotton of the net value of $700; that this same dike diverted the natural flow of the surface water from heavy rains in May 1954, causing such water to cross plaintiff's land; that the excess water increased the size and distance of the creek or river and broke all of the terraces situated on his land to his damage in the sum of $2,000; that he also sustained or would sustain a net loss of $3,500 covering the value of his 1955 and 1956 cotton crop. Plaintiff prayed for his damages and for the additional sum of $2,500 as exemplary damages.
The defendant denied that she diverted the natural flow of the surface water in any manner, but alleged to the contrary that the natural channel of the creek crossed the north line of plaintiff's land at the northeast corner of his 100-acre tract and that the surface water flowed in a southwesterly direction across plaintiff's land to a ditch on the west line and thence south and off the section of land of which plaintiff's land is a part; that after the plaintiff received his 100 acres in the partition of 1938, he terraced his land and placed a shelter belt of trees along his north line from the west to the creek bank, raising the elevation of his land, which impeded the natural flow of the waters of the creek; that the water thereafter pushed out the west bank of the creek just north of and adjoining the land of plaintiff, causing the creek to change its course and go west across defendant's land and not southwest across plaintiff's land as had always been its natural course. Defendant's position is that she thereupon placed the embankment (dike) on the spot where the west bank of the creek had been before it was washed away and in doing so did not divert the natural flow of the water, but, on the contrary, it continued to flow in what had always been its natural course and that the embankment did not divert any water from the course.
The case was submitted to a jury on special issues, in response to which the jury found in favor of the defendant on all material issues. The jury found favorable to the defendant that the natural flow of the surface waters from the land owned by the defendant was near the northeast corner of the land owned by the plaintiff; that some waters flowed across plaintiff's land before the leves was constructed by the defendant; that the natural flow of the surface waters from the land owned by the defendant was not at the southwest corner of the defendant's land as claimed by the plaintiff; that the defendant did not cause to be placed in the natural flow of the surface waters plaster boards and other obstructions as alleged by the plaintiff; that in October 1953, the defendant did not divert surface waters across the land of the plaintiff in excessive, unnatural, and destructive quantities, as alleged by plaintiff and that plaintiff sustained no damages to his cotton crops or land by any act charged against the defendant; that the defendant was not prompted by malice toward the plaintiff at the time she caused the levee or embankment in question to be constructed.
Judgment was entered that the injunction prayed for by plaintiff be in all things refused, and that all relief including prayer for damages be denied. The judgment was reversed by the Court of Civil Appeals, and judgment there rendered that a mandatory injunction issue, ordering the defendant to 'tear down and remove the levee and restore the ground to the condition it was in immediately prior to the construction of the levee involved.' The judgment of the trial court denying damages was reversed and remanded to the trial court for a new trial. Tex.Civ.App., 309 S.W.2d 957.
The defendant secured favorable jury findings on several additional defenses to plaintiff's suit, but under our view of the case, the only question to be resolved here is whether the jury findings that the natural flow of the surface waters from the land owned by the defendant is near the northeast corner of the land owned by plaintiff, and whether the levee or embankment constructed by the defendant did not divert the natural flow of such surface waters are supported by probative evidence. We have concluded that the evidence supports the findings of the jury on these controlling issues, therefore, a determination of the other issues that were raised is unnecessary to a decision of this case.
The jury found against the plaintiff on every material issue submitted by the court touching upon the question here under consideration. Plaintiff's position that the natural flow of the surface waters from the defendant's land and from the land to the north and the east of the defendant had always been across the defendant's land and flowed off of said land at the southwest corner thereof until defendant diverted the natural flow with the levee constructed by her in 1953, was denied by the jury's answer to special issue No. 1. 1 The finding of the jury was supported by the testimony of a number of witnesses. Some of these witnesses testified that the natural flow of the surface waters was the same in 1907 and 1909, as at the time of the trial, and that at all times the natural flow was from the defendant's land across that of plaintiff's. The evidence shows that immediately after receiving the 100 acres awarded to him by partition agreement, the plaintiff built terraces on his land to where the water could not flow in its natural course across his land, and that he also placed a shelter belt of trees along his north line from the west to the creek bank, and that such acts impeded the natural flow of the waters; that thereafter the water pushed out the west bank of the creek just north of and adjoining the land of plaintiff causing the creek to change its course and go west across defendant's land and not in its natural southwest course across plaintiff's land; that the levee or embankment was placed on the spot where the west bank of the creek had been before plaintiff's terraces and tree shelter belt were constructed; that the levee or embankment was not six to eight feet higher than the ground level as testified by plaintiff. Mr. Reed, who was employed by the defendant to...
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