Stevenson v. City of Abilene, 1212.

• Decision Date: 05 January 1934
• Docket Number: No. 1212.,1212.
• Citation: 67 S.W.2d 645
• Parties: STEVENSON et al. v. CITY OF ABILENE et al.
• Court: Texas Court of Appeals

67 S.W.2d 645

STEVENSON et al. v. CITY OF ABILENE et al.

No. 1212.

Court of Civil Appeals of Texas. Eastland.

January 5, 1934.

Rehearing Denied February 2, 1934.

Appeal from District Court, Taylor County; W. R. Chapman, Judge.

Action by Ellouise C. Stevenson and husband against the City of Abilene and others. From an order sustaining a general demurrer to the petition and dismissing the case, plaintiffs appeal.

Affirmed.

J. McAllister Stevenson, John Sayles, and Jack Sayles, all of Abilene, for appellants.

H. L. DeBusk and Wagstaff, Harwell, Wagstaff & Douthit, all of Abilene, for appellees.

HICKMAN, Chief Justice.

Appellant Ellouise C. Stevenson, joined pro forma by her husband, J. McAllister Stevenson, filed this suit in the court below against the city of Abilene, a municipal corporation, and West Texas Utilities Company, a private corporation, to recover against the city $80,000 damages for breach of an alleged covenant to deliver waste water from a septic tank, constituting a part of the sewer system owned by the city, on the lands of appellant. The West Texas Utilities Company was made a party defendant "in order that the ownership of the entire servient estate may be before the court in order that the court may make its decree granting relief prayed for." When the case was called for trial, the court sustained the general demurrer urged by the city, and, appellant declining further to amend, judgment was entered dismissing the suit, from which judgment this appeal was prosecuted.

Attached as an exhibit to the petition was a certain written instrument executed by Fred Cockrell constituting the primary basis of the alleged cause of action, which is here set out in full, as follows:

"The State of Texas, County of Taylor

"Know all men by these presents: That Fred Cockrell of said county and State being the owner of Lot 2, Block 196, and Lots 2 and 3, Block 220, and Lots 1, 2, and 4, in Block 221, and Block 222, as shown on map of the city of Abilene, Texas, and being part of survey in Taylor County, Texas, for a valuable consideration paid by Abilene Sewer Company, a corporation, hereby grants and conveys to said Abilene Sewer Company and its assigns a perpetual easement over said Lot 2 Block 196, and Lots 2 and 3 in Block 220, and Lot 4, Block 221, for the purpose of constructing and maintaining ditches, pipes and flumes to convey the waste water from a septic tank to be maintained and constructed by Sewer Company at some point west of Cedar Creek in said city of Abilene, Texas, and grants to said Sewer Company and its assigns a perpetual right to convey the waste from said septic tank over said lot No. 4 Block 221, and to there deliver said water and empty same on said lot No. 4, and the grantor hereby binds himself and his heirs and assigns to take charge of the said water on said Lots 4, and the grantee is given a perpetual easement over Lot 1, Block 221 and over Block 222, for the purpose of conveying if necessary any waste or water not cared for on said lot 4 to Cedar Creek and the grantor and his heirs and assigns agree if necessary to construct a ditch on said lots over 1 and 4 Block 221, and Block 222, to north boundary line of Block 222, and maintain the same for the purpose of conveying any waste that is not cared for on lot 4 to said Cedar Creek and in the event the grantor his heirs and assigns shall fail to maintain a ditch for this purpose then the grantee or its assigns shall have such right.

"This easement to be perpetual and is a covenant running with the land and grantee agrees to deliver all water from said septic tank on said lot No. 4, above described.

"Witness my hand this 7th day of January, 1905.

                                        "Fred Cockrell."
                

The covenant relied upon by appellants was that expressed in the concluding words of the instrument as follows: "* * * Grantee agrees to deliver all water from said septic tank on said lot No. 4, above described." The petition alleged that the city of Abilene is a municipal corporation operating under a charter granted to it by special act of the Legislature of the state of Texas, chapter 45 of the Special Laws of the 32d Legislature of Texas; that prior to the execution of the above instrument, the city granted a franchise to R. D. Richey and associates, and their assigns, for the purpose of constructing, maintaining, and operating a sewerage system in said city, in which grant it was provided that the city should have the right at any time after the expiration of 15 years to purchase the same upon certain terms therein specified; that such franchise was thereafter duly assigned and transferred to the Abilene Sewer Company, a private corporation, grantee in the above instrument, which constructed the sewerage system and put same in operation. It was further alleged that it was contemplated at the time of the execution and delivery of the instrument above copied that the waste water from the septic tank would be used by the said Fred Cockrell, his heirs, and assigns, for the irrigation of the lands then owned and thereafter acquired by him, his heirs, and assigns, and that one of the purposes and objects of the contract and agreement was the delivery of said water so that it could be, and would be, put to a beneficial use. On the 28th day of July, 1917, appellant Ellouise C. Stevenson acquired the said land and premises from Fred Cockrell and his wife, Emily B. Cockrell, as her sole and separate estate. The Abilene Sewer Company constructed and maintained said septic tank, ditches, pipes, and flumes, and delivered and emptied all of said waste water in accordance with its contract and covenant until it sold said system to the city of Abilene, in the year 1920. In the deed of conveyance from the Abilene Sewer Company to the city of Abilene was this language: "* * * Also, all of the rights of said Abilene Sewer Company, together with the obligations thereof, to be performed by it, granted the said Abilene Sewer Company by Fred Cockrell by instrument dated January 7, 1905."

The petition enumerated certain acts of the Legislature enacted in 1913, 1915, 1923, and 1925, relating to the pollution of streams, and alleged the unconstitutionality of each of them, following which allegations were these:

"XXIII. That during the year 1922 the city of Abilene established copious municipal water supply, the result of which was to increase the amount of total effluent from said septic tank; that thereupon the city of Stamford, a municipal corporation, of Jones County, Texas, made representations to the defendant city that it had recently established a source of domestic and municipal water supply, known as Lake Penick, in Jones County, Texas, on the waters of the Clear Fork of the Brazos River, into which fork and lake the said Cedar Creek was tributary, and that the effluent returning to said Cedar Creek after being spread over the lands of plaintiff was polluting and contaminating the said water supply; that the said Lake Penick is some 25 miles distant from the premises of plaintiff by air line, and twice or three times that distance following the meanders of said water courses, and said effluent could not in any way have contaminated said lake, but would have filtered and purified by its travel thereto; but that said defendant city and its officers, at the instance and request of said city of Stamford thereupon seized and took possession of plaintiff's premises, and proceeded to construct dykes and ditches and laterals, in order to prevent the return of said effluent to said creek.

"XXIV. That thereafter on or about the 15th day of January 1923, plaintiff and defendant city made and entered into the Supplemental Contract shown herein as Exhibit `E' hereto attached and made a part hereof; that pursuant to said contract plaintiff Ellouise C. Stevenson made her designation in writing appointing Lloyd B. Thomas of Taylor County, Texas, her agent upon whom notice could be given, and filed such designation with the city secretary of said city, and that said agent, Lloyd B. Thomas, has continuously resided and been in Taylor County, Texas, and has been and is now such agent; that plaintiff has performed her obligations under said contract and in order to carry...