Southwestern Portland Cement Co. v. Kezer

• Decision Date: 18 February 1915
• Docket Number: (No. 379.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 174 S.W. 661
• Parties: SOUTHWESTERN PORTLAND CEMENT CO. et al. v. KEZER.
• Court: Texas Court of Appeals

174 S.W. 661

SOUTHWESTERN PORTLAND CEMENT CO. et al. v. KEZER.

(No. 379.)^†

Court of Civil Appeals of Texas. El Paso.

February 18, 1915.

On Rehearing, March 11, 1915.

Appeal from District Court, El Paso County; M. Nagle, Judge.

Action by H. A. Kezer against the Southwestern Portland Cement Company and the El Paso & Southwestern Railroad Company and another. From a judgment against the defendants named, they appeal. Affirmed.

Burges & Burges, Hawkins & Franklin, and W. M. Peticolas, all of El Paso, for appellants. McBroom & Scott, of El Paso, for appellee.

WALTHALL, J.

This suit was brought by H. A. Kezer against the Southwestern Portland Cement Company, the El Paso & Southwestern Railroad Company, and the El Paso & Southwestern Railroad Company of Texas for alleged damages to a certain tract of land in New Mexico, and the crops, vegetables, trees, and shrubs, etc., growing thereon, by reason of being flooded by backwater from the Rio Grande river, said water having been caused to back up and flow over said land by the combined action of a dam on the west side of the river, constructed by the defendants Railway Companies, and obstructions on the east side of the river, placed there by the defendant Cement Company.

As a defense, the Railway Companies plead to the jurisdiction of the court, and allege that, if plaintiff suffered any damages, it was on account of the obstructions placed by the Cement Company; two-year statute of limitation; denied liability; and prayed judgment over against the Cement Company.

The Cement Company denies generally that anything done by them caused the flooding of plaintiff's land; that the land was flooded by the excessive headwater flood in the river, and not by backwater; that, if flooded by backwater, a fill in the county road was the cause of the backwater; and, further, that, if flooded by backwater, the embankment of the Railway Companies was the cause; and pleaded two-year limitation. The case was tried by a jury, resulting in a verdict and judgment for plaintiff against the Southwestern Railroad Company for $1,333.33, and against the Cement Company for $2,666.67. Verdict was instructed in favor of Southwestern Railroad Company of Texas, and against the cross-actions, from which this appeal comes to us.

Findings of fact: The plaintiff, in 1907, became the owner of a tract of land on the bank of the Rio Grande river, in the state of New Mexico; and, at the time of the injuries complained of, was residing thereon, and had growing crops of alfalfa, vegetables, and nursery, consisting of young trees, roses, shrubs, etc. The defendant Railroad Company, a resident of El Paso county, Tex., in 1904, for the purpose of protecting the pier of its bridge, on the western bank of the river, constructed a wing dam across the then channel of the river, a portion of said dam reaching into the state of Texas. Said dam was a short distance below the aforesaid property of plaintiff. The result at that time was to change the channel of the river from the west to the east bank thereof. The defendant Cement Company, a corporation domiciled in El Paso county, Tex., at different times prior to 1912 constructed certain fills and dams in the river opposite to the wing dam of the railway company. As a result of the two obstructions, the water was impeded in its flow so that silt therein was permitted to settle in the bed of the river between the said obstructions and the land of plaintiff, and to thereby raise the bed of the river and the water level at all times, and especially at high-water periods, whereby in May, 1912, during flood season of the said river, the waters of the river were caused to back up and to flow over onto plaintiff's land, injuring same and destroying his growing trees, flowers, etc., for the reasonable value of which he recovered judgment.

The appellant Cement Company's first assignment of error raises the question of the application of the statute of limitation of two years to appellee's cause of action. Appellant's contention is that, the Rio Grande being a natural water course, any obstruction thereof by the appellant to the probable injury of appellee was a tort, and limitation began to run from the date of the commission of the tort, and not from the date that injuries might thereafter occur, because thereof. The opposing proposition is that the obstruction placed in the bed of the river was not a trespass or invasion of appellant's rights in the sense of giving him the cause of action pleaded when the obstruction was placed in the river; that the conditions resulting to appellant therefrom were not continuing and constant, but dependent on the contingency of heavy rises in the river; and that the suit was begun within two years after the actual damages alleged occurred.

In support of appellant's proposition, we are referred to Houston Waterworks Co. v. Kennedy, 70 Tex. 233, 8 S. W. 36. In that case suit was brought to recover damages alleged to have resulted from an injury to a house owned by the plaintiff, which he claimed was caused by the making of an arch by the defendant in placing a water pipe in the building, and that in so doing removed a support to one corner of the building, causing the building to settle away from other portions of the building, the walls to crack and burst open in places, thus causing the damage alleged. The suit was not brought in two years after the arch was cut, but was brought within two years after the settling of the corner and cracking of the walls. Judge Stayton, in discussing that case said:

"The action was one that would be barred in two years after the cause of action accrued, and the inquiry is, when did the cause of action accrue? The arch and house alleged to have been injured were the property of the appellee at the time the arch was cut. This was an act wrongful toward the owner of the property, for which an action might have been maintained as soon as the tort was committed. When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent upon, the act, it is held that the cause of action does not accrue until the injury is sustained. * * * If, however, the act of which the injury was the natural sequence was a legal injury, by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff's right, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damage resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar."

In that case the Supreme Court held that the cause of action accrued when the arch was cut, and would be barred by the statute after two years. The weakening of the arch in that case was an immediate injury, a present invasion of the plaintiff's right; the damage to his house did not depend upon any future contingency. In the case of Austin & N. W. Ry. Co. v. Anderson, 79 Tex. 427, 15 S. W. 484, 23 Am. St. Rep. 350, the Supreme Court of this state discussed and distinguished the Houston Waterworks v. Kennedy Case. In that case the action was brought against the railroad company in 1888 for damages for so constructing its roadbed and culverts, in 1881, as to change the natural flow of the surface water from ordinary rains, cause it to be collected in large quantities, and to be carried in large volumes down to and through certain culverts upon plaintiff's land, submerge it, washing away the soil, remaining on it for a long time, and causing the damage complained of. The injury was done in 1886, 1887, and 1888. It was contended that the cause of action arose when the culverts and roadbed were constructed in 1881. The court, after quoting from Judge Stayton's opinion in the Houston Waterworks v. Kennedy Case, said that "the weakening of the arch was an immediate injury — an immediate invasion of the rights of the plaintiff." The court quoted with approval and applied the principle announced in Powers v. City of Council Bluffs, 45 Iowa, 652, 24 Am. Rep. 792, a suit for damages by reason of a ditch dug by the city to carry away a running stream of water along a street, the constant action of the water causing the injury to plaintiff's land, in which it was held that no suit could be maintained until some actual injury to plaintiff was caused by the action of the water resulting from the improper construction of the ditch. The court said that the building of the roadbed and culverts was no invasion of plaintiff's rights; they were not put on his land; they became a nuisance only at intervals by diverting the water from rainfalls from its usual flow upon plaintiff's land. The embankment and the culverts were permanent, but the nuisance was not. There was no constant and continuing injury. In the case of Ry. Co. v. Graham, 12 Tex. Civ. App. 56, 33 S. W. 577, the court said:

"The well-settled rule upon this subject in this state is that, if the structure is such as to occasion damage only at times, the injured party may sue separately for each injury he received; but, if the damage produced is continuing and permanent in its nature, he may and must obtain the redress in one action. * * * As alleged and proved in this case, the dam worked a constant injury to the land from the beginning. It created a permanent status of injury to the freehold from the time of its construction. As a result, limitation will run on such a demand from the time the injury was instituted."

In the case of International & G. N. Ry. Co. v. Kyle, 101 S. W. 272, the court held that the building of an embankment by a railroad company is not of itself a nuisance or an invasion of plaintiff's rights, but becomes so only at intervals by diverting water from rainfalls from its usual flow upon plaintiff's land; the cause of action arises upon receipt of such injury, and successive actions may be...