State v. Hale

• Decision Date: 22 January 1941
• Docket Number: No. 7176.,7176.
• Citation: 146 S.W.2d 731
• Parties: STATE et al. v. HALE et ux.
• Court: Texas Supreme Court

146 S.W.2d 731

STATE et al. v. HALE et ux.

No. 7176.

Supreme Court of Texas.

January 22, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from Court of Civil Appeals of Third Supreme Judicial District.

Suit by W. S. Hale and wife against the State of Texas and the State Highway Commission for damages by reason of overflow of plaintiffs' lands. Judgment for plaintiffs for $52,544.52 was reformed by the Court of Civil Appeals so as to award plaintiffs judgment for $37,800 together with interest thereon from September 1, 1927, at the rate of 6 per cent. per annum and costs, and as so reformed, affirmed, 96 S.W.2d 135, and the defendants bring error.

Judgments of the Court of Civil Appeals and of the trial court reversed in part and reformed in part, and as so reversed in part and reformed in part affirmed.

Wm. McCraw, Former Atty. Gen., of Dallas, James V. Allred, Former Atty. Gen., of Houston, Curtis E. Hill, Former Asst. Atty. Gen., of Dallas, T. S. Christopher, of Ft. Worth, M. W. Burch, of Decatur, and John L. Green, of Austin, for plaintiffs in error.

Polk Shelton, of Austin, and Bradley & Bradley, of Groesbeck, for defendants in error.

Fulbright, Crooker & Freeman, C. A. Leddy, Carl G. Stearns, and W. H. Marshall, all of Houston, amici curiae.

SHARP, Justice.

W. S. Hale and wife brought this suit in the District Court of Travis County against the State and the State Highway Commission, under the authority of Senate Bill No. 197, passed by the 42d Legislature at its regular session of 1931, chap. 72, p. 160, Special Laws of such session. The plaintiffs alleged damages by reason of overflow of their lands, which was caused by the State, through its State Highway Department, having built a temporary dump or roadbed on said Highway No. 43 across Keechi Creek bottom, situated near the town of Oakwood. The case was submitted to a jury on special issues, and by virtue of the answers made by the jury, the trial court entered judgment for Hale and wife for $52,544.52, of which sum $37,800 was the amount of damages found by the jury, and $14,744.52 was interest thereon at six per cent. per annum from September 1, 1927, to the date of the judgment, June 11, 1934. The judgment bears legal interest from its date. The State appealed the case to the Court of Civil Appeals at Austin, and the judgment of the trial court was reformed so as to award Hale and wife judgment for $37,800, together with interest thereon from September 1, 1927, at the rate of six per cent per annum, and all costs,—and, as reformed, the judgment of the trial court was affirmed. 96 S.W.2d 135.

We shall designate the parties as plaintiffs and defendants, as they were in the trial court.

The farm owned by Hale and wife consisted of several tracts of land, aggregating 1,400 acres, and was operated as a unit. It was located on the east bank of Keechi Creek, and north of and abutting upon an old road which crossed the creek bottom (about 3,400 feet wide between the foothills) at this point. In July, 1927, the Highway Department began the construction of Highway No. 43 by building a temporary road, which was completed in August, 1927, consisting of a dump across the bottom, something like 2.5 to 5 or 6 feet above the natural surface of the adjacent land. In this dump two openings for drainage were left,—one 147 feet wide at the slough crossing, and the other 174 feet wide at the creek crossing. The old road was not substantially higher than the surface of the adjacent land. The permanent highway was constructed sometime later, with much wider openings at 440 and 680 feet, respectively. The damage sued for and recovered was for permanent injury to the land by reason of obstructing the natural flow of the flood waters which theretofore had passed unimpeded over the old roadway, thereby depositing large quantities of sand and other substances on the land, and impairing its productivity for use in growing crops. It was the theory of the defendants that the permission to sue was limited to injuries caused by the use of the temporary dump. The trial court adopted this theory in submitting the special issues to the jury.

In 1930 plaintiffs conveyed to the county, for highway purposes a strip of land off the farm, containing approximately 13 acres, for $500 in cash. This strip was purchased in order to give necessary roadway width to Highway No. 43. The terms of the deed and the consideration expressed therein did not purport to settle or pay for damages to other land growing out of the construction of such highway.

The special issues and the jury's answers thereto read as follows:

"1. Do you find from a preponderance of the evidence that the land of the plaintiff W. S. Hale and his wife Mary D. Hale was injured by reason of the construction by the State of Texas of the temporary or old highway dump on highway No. 43 across the bottom of Keechi Creek adjacent to the south end of the Hale farm?" Answer: "Yes."

"2. Was the temporary or old highway dump on State Highway 43 constructed in such a manner as to cause overflow of the property or farm of plaintiffs in this case?" Answer: "Yes."

"3. How many acres of the land of W. S. Hale and his wife Mary D. Hale, plaintiffs in this case, were caused to be overflowed by the construction of the aforesaid dump on which sand or other substances injurious to the growing of crops were deposited?" Answer: "500 acres."

"4. (a) What was the reasonable cash market value, or if no reasonable cash market value, the intrinsic value, of the Hale farm per acre immediately before the construction of the temporary or old highway dump on highway 43 adjacent to the south end of the Hale farm in July, 1927?" Answer: "$75.00 per acre on entire farm."

"4. (b) What was the reasonable cash market value, or if no reasonable cash market value, the intrinsic value, of said property immediately after the completion of the aforesaid dump in August, 1927?" Answer: "$48.00 per acre on entire farm."

Defendants made no objections or exceptions to any portion of the charges or special issues, and no special charges or issues were requested by them. If the case presented other grounds of defense in favor of the State, under the state of this record they were waived. Therefore, we are confined to a consideration of the questions presented by this record.

Defendants in their brief herein state: "The petition * * * alleges two separate causes of action, the gravamen of the first being an action sounding in tort or negligence, and the second being an asserted cause of action upon the ground of the taking or damaging of property applied to public use without compensation."

Since the Court of Civil Appeals has exhaustively stated the facts and the contentions made by the State in its brief, and copied them verbatim, we shall refer to the opinion of the Court of Civil Appeals for such assignments, without copying them herein. We shall refer herein only to those assignments discussed in this opinion.

The defendants' first contention is that a general demurrer should have been sustained to plaintiffs' petition, because the law authorizing this suit confined the action to one of negligence.

The caption of the act authorizing this lawsuit reads as follows: "An Act giving to W. S. Hale and wife, Mary D. Hale, consent of the Legislature to sue the State of Texas and State Highway Commission for damages resulting from the construction of State Highway No. 43 through Leon County, Texas; and declaring an emergency."

The pertinent provisions of the act are sections 1 and 2, which read:

"Section 1. That the consent of the Legislature of the State of Texas is hereby given to W. S. Hale and wife, Mary D. Hale, his executor, administrator and heirs to file and prosecute suit against the State of Texas and the State Highway Commission by reason of the alleged negligence in construction of State Highway No. 43 in and through Leon County, Texas, which construction was begun in July, 1927, and especially by reason of the constructing of said Highway in such manner as to overflow and otherwise damage the lands of said Hale. Said suit shall be brought in Travis County, Texas.

"Sec. 2. The State and said Commission may appeal from said judgment, as provided by Law, without executing any bond, and, upon the final judgment being recovered against said defendants, the same shall be paid out of the State Highway Funds."

The act authorized Hale and wife to sue the State and the Highway Commission for "damages resulting from the construction of State Highway No. 43 through Leon County, * * * and especially by reason of the constructing of said Highway in such manner as to overflow and otherwise damage the lands of said Hale."

When this act is considered as a whole, we think the Legislature intended to authorize plaintiffs to maintain any existing legal action had for damages sustained to their land by reason of the construction of Highway No. 43 through Leon County; and in order to maintain such suit it was essential that the State should give such consent. The object of construing any statute is to ascertain the purpose for which it was enacted. When the caption and the material parts of the act are read and considered together, they are broad enough to permit plaintiffs to file suit for any legally existing claim they have against the State growing out of the construction of Highway No. 43. We do not believe that the Legislature intended to do a useless thing, by authorizing plaintiffs to file a suit based on a ground that is prohibited by law. Nor do we believe that this act should be given such a narrow and technical construction as would prohibit the filing of a suit for an existing legal claim arising from the construction of this highway. This contention is overruled.

Defendants also contend that, "The Court of Civil Appeals and the Trial Court should have sustained the general demurrer of plaintiffs in error because the construction of a highway was a...