Tarrant County Water Control & Improve. Dist. v. Reid

• Decision Date: 30 May 1947
• Docket Number: No. 14837.,14837.
• Citation: 203 S.W.2d 290
• Parties: TARRANT COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 1 v. REID.
• Court: Texas Court of Appeals

203 S.W.2d 290

TARRANT COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 1 v. REID.

No. 14837.

Court of Civil Appeals of Texas. Fort Worth.

May 30, 1947.

Rehearing Denied June 27, 1947.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by H. N. (Jackie) Reid against Tarrant County Water Control & Improvement District No. 1 for damage to plaintiff's land as the result of defendant's construction and maintenance of a dam and lake created thereby. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Samuels, Brown, Herman & Scott, of Fort Worth, for appellant.

Callaway, Wade & Davis, of Fort Worth, for appellee.

HALL, Justice.

On December 10, 1945, appellee H. N. (Jackie) Reid sued appellant Tarrant County Water Control and Improvement District No. 1 in the 48th District Court of Tarrant Count, Texas, alleging an action of permanently injuring, damaging and/or taking appellee's land (a 47½ acre tract) caused by the construction, erection, and maintenance of Eagle Mountain Dam and the lake created thereby, resulting in the slowing down of the overflow water across appellee's land thereby depositing sand, gravel, and other debris in great quantities upon same, which destroyed its usefulness. He further alleged that this slowing down of water caused the channel of the river adjacent to his land and the branch thereof running through his land to be filled with sand to the point where they were wholly inadequate to carry the normal flow of water. That the damage and/or the taking of his land began in the year of 1941 during a flood period, that the injury done to his land by the sand deposits at that time, caused by the slowing down of the water in the stream, was permanent.

Defendant's answer discloses, among other grounds of defense, the two-year statute of limitations. Vernon's Ann.Civ. St. art. 5526.

On the 24th day of September, 1946, the court rendered judgment in favor of appellee in the sum of $9,425.00, based upon jury findings. The court further found that the money judgment was rendered for a taking of appellee's land within the meaning of the terms of the Constitution of Texas, and granted appellant an easement in and upon said land for the use and flow of water to Eagle Mountain Lake and the submergence of said land from any cause, directly or indirectly attributable to Eagle Mountain Lake and Bridgeport Lake for all times.

Appellant filed a motion for judgment non obstante veredicto, stating as one of its grounds to support the motion that the cause of action set up by appellee was barred by the statute of limitations of two years, which was by the court overruled; from said adverse ruling and judgment appellant perfects this appeal and relies upon five points of error for reversal of this case. We will first discuss appellant's point of error No. four, for the reason that if the two-year statute of limitations was interposed, we need not then discuss the remainder of appellant's points of error. Said point is quoted as follows:

"Under the uncontroverted facts the cause of action asserted by plaintiff is one for a damaging of his lands within the meaning of Art. I, Sec. 17 of the Constitution of Texas, Vernon's Ann.St.; to which the two-year statute of limitations is applicable, and the cause of action having accrued not later than June 9, 1941, the instant suit filed December 10, 1945, is barred by the two-year statute of limitation."

Appellee admits in his brief that if his cause of action is simply one of damaging the land in question as distinguished from a taking thereof, then the two-year statute applies and the cause of action is barred. Of course his contention is that his land has been appropriated and taken by appellant. Therefore, it will take a complete analysis of the facts in the case to determine (granting that it presents a cause of action, which we are not passing upon at this time) first, whether the cause of action is for "damage" to the land, and therefore barred by the two-year statute of limitation under R.C.S.1925, Art. 5526, or second, as to whether the cause of action is for the "taking" of the land under the constitutional provision in Art. I, Sec. 17, wherein the law of prescription would apply. Said section reads in part as follows:

"No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; * * *."

A review of appellee's testimony shows that he was reared on the place in question, that before 1941 the river, from bank to bank at the top, was approximately 90 to 100 feet wide, and at the bottom it was more than 40 to 45 feet wide, that it would range in depth from 20 to 25 feet, that the slough running across his land was approximately 40 feet wide at the top and about 20 feet wide at the bed, that the flood of 1941 filled up these channels with sand and left his land covered with sand and debris, thereby destroying the value of same; that the land had overflowed before the building of the dam.

There is no controversy between the parties that appellee's land is not damaged by the overflow of water coming down the river and the slough across his place. He alleged and proved to the satisfaction of the jury the extent of his damage but as to the determination of the acts of appellant in building the dam as being the direct or proximate cause of the damage is not essential in discussing the question of limitation.

Appellee testified that his land was located approximately three air-line miles upstream from the body of the lake, and about eleven air-line miles from the dam creating said lake in question.

Appellee relies principally upon the holding in the case of Tarrant County Water Control & Improvement District No. 1 v. Fowler, Tex.Civ.App., 175 S.W.2d 694, 698, writ refused for want of merit by Supreme Court, 142 Tex. 375, 179 S.W.2d 250, to sustain the trial court's judgment in finding that the action of appellant in constructing the water dam in question eleven miles down stream from appellee's land was in effect the "taking" of said land by causing the water to flow slower by and through his place, thus leaving sand deposits upon it.

An analysis of the holding in the Fowler case, supra, reveals that the dam under discussion in that case was constructed so as to "take" Fowler's land by submersion. It was to be a part of the lake basin and when the water was ten feet over the spillway, approximately fifty acres of Fowler's land would be submerged, at nineteen feet over the spillway, 111 acres would be submerged, and by closing the gates, the water reaching thereto, his land would be entirely covered by water and the court stated in compliance with such facts the following:

"We think the evidence shows there had been a `taking' within the meaning of the Constitution, and that appellant is wrongfully using appellee's land without having either condemned the same or compensated him therefor."

The court held, therefore, that when there is a "taking" as in the Fowler case, a claim would not become barred before the period necessary to acquire land by adverse possession. This holding was based upon the law as outlined in 18 Am.Jur., a portion of Section 394, page 1042, which said opinion quotes as follows:

"* * * on the other hand, it is held that where the Constitution requires compensation first to be paid before an owner's land is taken, the burden of prosecuting his claim for compensation cannot be placed on the owner prior to the running of a prescriptive period * * *."

For further authorities, see Fowler case, supra.

The case of McCammon & Lang Lumber Co. et al. v. Trinity & B. V. Ry. Co., 104 Tex. 8, 133 S.W. 247, 36 L.R.A.,N. S., 662, Ann.Cas.1913E, 870, cited by appellant, points out that "in the constitutional provision as to compensation for property taken for public use, the term `property' includes the fee-simple title to the thing owned, whether it be burdened with an easement or not; and the term `taken' includes the appropriation of that thing or of some interest or estate in it, by actual, physical possession, such as exists when a railroad is constructed and operated on it."

Bearing in mind the rule announced in the Fowler case to the effect that where land is taken within the meaning of the Constitution the claim is not barred prior to the running of the prescriptive period, which is ten years in this state, and the holding in the McCammon case, supra, which establishes the rule that a "taking" results from an actual physical invasion of the property and that injury to land not actually occupied only affords a cause of action for "damage" to the land:

We will now look to the facts in this case to see whether or not the land of appellee was actually "taken" or "damaged."

Appellee's land is situated above the lake in the flood-way of the water source that feeds the lake, at the respective distances from the lake shore and the dam as outlined above.

In February, 1934, the dam in question was completed. The testimony of appellee is to the effect that the flood during the years 1941 and 1942 caused permanent injury to his lands. He sued a...