Strickland v. Lakeside Irr. Co.

• Decision Date: 19 March 1915
• Docket Number: (No. 6965.)
• Citation: 175 S.W. 740
• Parties: STRICKLAND et al. v. LAKESIDE IRR. CO.
• Court: Texas Court of Appeals

175 S.W. 740

STRICKLAND et al. v. LAKESIDE IRR. CO.

(No. 6965.)

Court of Civil Appeals of Texas. Galveston.

March 19, 1915.

Appeal from District Court, Colorado County; M. Kennon, Judge.

Suit by the Lakeside Irrigation Company against W. S. Strickland and others. From an order granting a temporary injunction, defendants W. S. Strickland and another appeal. Reversed, and judgment rendered vacating the order as to appellants.

Strickland & Wirtz, of Eagle Lake, for appellants. W. L. Adkins, of Columbus, for appellee.

PLEASANTS, C. J.

This is a suit for injunction brought by appellee against E. P. Brisbois, Fritz Englehard, J. W. Burns, C. M. Womack, J. J. Mansfield, A. J. Ratliff, Adam Leyendecker, J. F. Sandmeyer, W. J. Wright, W. S. Strickland, and A. J. Wirtz. The substance of the cause of action alleged in the petition is sufficiently stated in appellants' brief as follows:

"Plaintiff alleges: That it is a public service irrigation corporation, created and existing under and by virtue of the laws of Texas. That it is the owner of certain described land in Colorado county, Tex., on which is situated its pumping plant on the east bank of the Colorado river, by which it pumps water from said river and transports it into Eagle Lake, of the bed of which plaintiff owns one-half, as well as lands on the banks of said lake. That, by reason of certain litigation between John H. Kirby and plaintiff, plaintiff is required, by an injunction order, to pump as much water into the lake by reason of its river pumping plant as it takes out of said lake on the opposite side to supply its water consumers. That the said Eagle Lake is a natural pond or lake supplied alone by natural rainfall making its way into the lake by drainage, a large part of which water goes into a natural depression, known as Flag Pond slough, and from Flag Pond slough through a natural channel into said Eagle Lake. That, with plaintiff's property so situated, certain parties therein named (appellants not included) made application for an improvement district under chapter 85, approved March 19, 1909, at page 140 of the Acts of the Thirty-First Legislature. Plaintiff does not set out in detail that all the acts and procedure prescribed by said law have been complied with, but makes no complaint as to such procedure, and alleges that the commissioners' court of Colorado county ordered an election to be held within said improvement district on the 16th day of January, A. D. 1915, to determine whether or not said district shall be established and bonds issued in the sum of $67,500 and taxes levied in payment therefor, and in connection with such allegations makes the order of the court calling such election a part of its petition; and the order recites that all things prescribed by law up to the ordering of such election have been complied with, and orders said election as is provided by law. Plaintiff alleges: That, if said election is held as ordered, a majority of the property taxpaying voters residing in said district would vote to establish said district, and the issuance of the bonds and the holding of such election would result in great and useless expense to plaintiff and other taxpayers of the district. That if said election be held, and the proposed improvements made, as shown by the engineer's report, it will irreparably injure plaintiff in that the said levee will be so constructed as to prevent the natural drainage and rainfall coming into Eagle Lake through Flag Pond slough, which water plaintiff is entitled to by virtue of its ownership of land in the bed of said lake and riparian thereto, and to supply its consumers of water, and that a levee will be so constructed as to cause water from a rise in the Colorado river to back up and come over plaintiff's river pumping plant and flume, injuring and practically destroying the same. That such acts would be a taking of plaintiff's property without compensation and without due process of law. That the law allows the improvement commissioners to lease the levee as a highway and to sell the surplus dirt, material, etc., not needed in the construction of the levees, which is a further confiscation of plaintiff's property."

The prayer of the petition is as follows:

"Wherefore plaintiff says that, said act being unconstitutional under section 17 of article 1 of the Constitution of Texas, it is entitled to an injunction to prevent the threatened injury to its property and destruction of its said...