Taylor v. State, 2381.

• Decision Date: 22 January 1942
• Docket Number: No. 2381.,2381.
• Citation: 158 S.W.2d 881
• Parties: TAYLOR v. STATE.
• Court: Texas Court of Appeals

158 S.W.2d 881

TAYLOR v. STATE.

No. 2381.

Court of Civil Appeals of Texas. Waco.

January 22, 1942.

Rehearing Denied February 19, 1942.

Appeal from District Court, Seventy-fourth District, McLennan County; Giles P. Lester, Judge,

Action by Mrs. J. W. Taylor against the State to recover damages for permanent injury to land by flood waters. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Darden & Burleson, Bryan & Maxwell, and Joe W. Taylor, all of Waco, for appellant.

Gerald C. Mann, Atty. Gen., Pat Coon, Geo. W. Barcus, and Richard H. Cocke, Asst. Attys. Gen., and Willard McLaughlin, of Waco, for appellee.

HALE, Justice.

Appellant, Mrs. J. W. Taylor, having first obtained permission, sued appellee, the State of Texas, to recover damages on account of permanent injury to 120 acres of land. Her cause of action was predicated upon the provisions of Article I, Sec. 17, of the Constitution of Texas, Vernon's Ann.St. She alleged that appellee had caused a drainage ditch to be constructed along the south side of its highway and, in order to empty the waters from such ditch into the Brazos river, had cut the west bank of said river at a point where the same intersects with said ditch; that as a proximate result thereof, when the river rises above the elevation of the bottom of the ditch, a part of the waters of said river which previously flowed within its banks are now diverted and caused to flow out of the normal flood channel of the river into the ditch and to travel in a westerly direction through said ditch to a point where the same intersects a natural depression and thence in a southerly direction across her land; that on or about May 19, 1935, a rise of waters came down the Brazos river from the north which, by reason of the foregoing facts, resulted in the injuries and damages complained of. Appellee answered with a general denial and alleged, among other things, that appellant's land was subject to overflows prior to such construction and that the injury for which damages were sought was the result of an act of God.

The case was submitted to a jury on twenty-one special issues, in response to which they found, in substance, that the construction of the ditch diverted a part of the waters of the Brazos river in May, 1935, and proximately caused the same to flow over appellant's land, but that no part of her land had been reduced in value as a result of such diversion; that appellee did not construct the ditch, cutting the same to and through the banks of the river, and that appellant's land would have been overflowed in May, 1935, even though the ditch in question had not been constructed; that the flood of May, 1935, was an act of God, which act was the sole proximate cause of the damages complained of. The court thereupon rendered judgment that appellant take nothing and hence this appeal.

By numerous assignments, appellant contends that the judgment should be reversed because each of the findings of the jury (except those to the effect that the construction of the ditch diverted the flow of waters over her land in 1935) is contrary to the undisputed evidence and is so against the overwhelming preponderance of the competent testimony as to be clearly wrong. It was shown without dispute that in 1933, appellee's Highway Department caused a new bridge and highway to be erected and constructed over the Brazos river near the city of Waco in the vicinity of appellant's land which was situated approximately 1,000 feet south of the highway and immediately west of the river. In the construction of the highway approaching the bridge from the west, appellee's agents built up an embankment, which, at the point where it touches the bridge, is approximately 35 feet above the surrounding ground level, is 180 feet wide at the base and 40 feet wide at the top. This embankment slopes gradually down-grade from the bridge toward the west with a corresponding decrease in dimensions until at a point 1,300 feet from the bridge its surface area levels off at an elevation of 15 feet above the surrounding ground, with a width of 100 feet at the base and 40 feet at the top. The project plans disclosed a drainage ditch to be cut along the south side of this embankment on into the Brazos river. This ditch, at its nearest point to the river, was cut by appellee's agents to a depth of at least 10 or 12 feet below the ground level and to a width of about 50 feet across the bottom, its depth and width gradually decreasing with the increase of distance from the river toward the west. It appears that the ditch was cut primarily to obtain excavation for the construction of the required embankment, thereby saving the expense incident to a long haul of dirt. It was further shown without dispute that flood waters did flow from the Brazos river in May, 1935, and in September, 1936, over and across appellant's land to the injury and damage of portions of the same.

The evidence in the case is too voluminous to be here set forth even in the briefest summary, consisting as it does of maps, photographs, documents and the verbal testimony of some 25 witnesses. We deem it sufficient to say that while the evidence was adequate to sustain findings favorable to appellant on all issues submitted to the jury, yet nevertheless, in our opinion, the facts showing the liability of appellee and the amount thereof, if any, were not established by the undisputed evidence, and we cannot say that all material findings on the controlling issues submitted are so against the overwhelming preponderance of the testimony as to be clearly wrong. We therefore overrule appellant's assignments based upon the findings of the jury.

During the trial appellee offered in evidence exhibits 47 and 44 purporting to show the flood stages of the Brazos river at Waco for the years 1884 to 1933, and 1933 to 1936, respectively. Each of these exhibits was certified to by the Director of the Geological Survey, Department of the Interior of the United States, under the seal of that department as being true and literal exemplifications "of pages 333 and 334 of Water-Supply Paper 771, a report by the Geological Survey," and "of a sheet in the files of the Geological Survey," respectively. Each certificate recited that it was executed pursuant to the act of Congress, approved ...