State v. Hale

• Decision Date: 01 July 1936
• Docket Number: No. 8186.,8186.
• Parties: STATE et al. v. HALE et ux.
• Court: Texas Court of Appeals

Page 135

96 S.W.2d 135

STATE et al. v. HALE et ux.

No. 8186.

Court of Civil Appeals of Texas. Austin.

July 1, 1936.

Rehearing Denied July 22, 1936.

Appeal from District Court, Travis County; W. F. Robertson, Judge.

Action by W. S. Hale and wife against the State of Texas and others. Judgment for plaintiffs, and defendants appeal.

Judgment reformed and, as reformed, affirmed.

James V. Allred, Atty. Gen. (T. S. Christopher, of Fort Worth, M. W. Burch, of Decatur, and John L. Green, of Austin, of counsel), for appellants.

Polk Shelton, of Austin, and Bradley & Bradley, of Groesbeck, for appellees.

McCLENDON, Chief Justice.

This suit was brought by Hale and wife (appellees) against the state and the state highway commission (appellants), under chapter 72, p. 160, Special Laws 42d Leg., Reg.Sess.1931. The caption of the act reads: "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 judgment was for Hale and wife for $52,544.52, of which sum $37,800 was the amount of damage assessed by the jury, and $14,744.52 was interest thereon at 6 per cent. per annum from September 1, 1927, to the date of judgment, June 11, 1934. The judgment bears legal interest from its date.

The farm, consisting of several contiguous tracts aggregating 1,400 acres, 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 43 by building a temporary road (completed in August, 1927) consisting of a dump across the bottom some 2.5 to 5 or 6 feet (the testimony varying on this point) above the natural surface of the adjacent land. In this dump two openings for drainage were left—one 147 feet wide at a slough crossing, and the other 174 at the creek crossing. The old road was not substantially higher than the surface of the adjacent land. The permanent highway was constructed some time later, with much wider openings (440 and 680 feet, respectively). The damage sued and recovered for was 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 and use for the growing of crops. It was the theory of defendants that the permission to sue was limited to injuries caused by the temporary roadway. Since the court adopted this theory in submitting the special issues to the jury, it need not be further noted.

In 1930 plaintiffs conveyed to the county for highway purposes a strip of land off the farm containing approximately 13 acres for $500 cash. This strip was purchased in order to give necessary right of way width to Highway 43.

The special issues and the jury's answers follow:

"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."

No objection or exception was made by defendants to any portion of the charge or special issues, and no special charges or issues were requested by them.

Appellants' assignments of error (34 in number) embodied in their motion for new trial are copied verbatim and in full in their brief. These assignments, or such of them as are briefed at all, are briefed under ten propositions which urge, in substance, the following points:

1. The general demurrer should have been sustained and a verdict for defendants directed because (a) the act authorizing the suit and (b) the jury findings are limited to acts of negligence for which the state is not liable (Props. 1 and 3).

2. The general demurrer should have been sustained because construction of the highway was a governmental function, and there was no liability for consequential damages, absent allegations that the Highway Department was not acting under lawful authority, or that its action was arbitrary or an abuse of its discretion (Prop. 2).

3. It was error to admit evidence of injury to crops before or after 1927, or evidence of the value of houses, barns, and other improvements on the land (Props. 4 and 7).

4. The court should have instructed the jury that such testimony was offered and could be by them considered only in arriving at the value of the land before and after the road was constructed (Prop. 5).

5. Appellees' deed to the 13 acres, being for highway purposes, constituted compensation for consequential damage to the rest of the farm.

6. The state is not liable in any event for interest (Prop. 8).

7. The judgment should not have exceeded $13,500, or $27.00 per acre, for the land actually overflowed.

8. The judgment is excessive as a matter of law under the evidence.

It is not contended that the act under which the suit was brought attempted to create a liability against the state, or that it did more than give the state's consent to sue upon an existent cause of action, which might have been enforced independently of the act, but for the fact that the state cannot be sued in its own courts without its consent. See Brooks v. State (Tex.Civ.App.) 68 S.W.(2d) 534 (error refused).

It is conceded that the Highway Department is an agency of the state, created for the purpose of constructing and maintaining state highways; that its acts within its delegated authority are acts of the state; that its liability for those acts is the liability of the state; and that a suit against it, predicated upon such acts, is in effect a suit against the state. Herring v. Houston Nat. Exch. Bank, 113 Tex. 264, 253 S.W. 813.

This suit is maintainable only upon the theory that the construction of the highway constituted a taking or damaging of plaintiffs' property for a public use. Texas Const. art. 1, § 17.

That the state is not liable for the torts of its agents is not controverted. Brooks v. State, supra. It may therefore be conceded that if the enabling act gave the legislative consent to sue only for consequential damages resulting from a negligent or tortious manner in which the highway was constructed, the consent thus given was a mere fruitless gesture, conferring the bare right to sue upon a nonexistent cause of action. Giving full weight to the doctrine of strict construction as applied to this character of legislative action, we think the act, fairly and reasonably interpreted, especially in the light of the surrounding circumstances, must be construed as giving legislative consent to sue upon whatever cause of action the Hales might have against the state and its agency, the highway commission, for damages resulting from the construction of the highway. The caption of the act so states specifically and explicitly. The language of section 1, upon which appellants rely for their contention in this regard, is "consent * * * to file and prosecute suit * * * by reason of the alleged negligence in construction of State Highway No. 43 * * * and especially by reason of the constructing of said Highway in such manner as to overflow and otherwise damage the lands of said Hale." Of course this language, taken alone, might be construed as being limited to negligent construction. That, however, is by no means the only construction of which it is susceptible; and when interpreted in the light of the caption, which sets forth the purpose of the act, and in the light of the surrounding circumstances, it would be an extremely narrow and technical one, and one not in accord with the purpose and spirit of the act, nor one which the language fairly and reasonably...