Turner v. Big Lake Oil Co.
| Decision Date | 29 June 1933 |
| Docket Number | No. 2868.,2868. |
| Citation | 62 S.W.2d 491 |
| Parties | TURNER et al. v. BIG LAKE OIL CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Reagan County; C. R. Sutton, Judge.
Action by Anna Lee Turner and husband and action by Price Turner against the Big Lake Oil Company and others, which were consolidated. From a judgment for defendants, plaintiffs appeal.
Affirmed.
Kerr & Gayer, of San Angelo, for appellants.
Smith & Neill, of San Angelo, and Burney Braly, G. R. Pate, and G. B. Smedley, all of Fort Worth, for appellees.
Anna Lee Turner, joined pro forma by her husband, Price Turner, filed suit in the district court of Reagan county against the Big Lake Oil Company and Group No. 1 Oil Corporation.
Briefly stated, her petition discloses the following material facts:
Plaintiff owns two sections of land, Nos. 1201 and 1206. The Garrison draw, "a natural water course," a tributary of the Centralia draw, crosses the two sections. On the land and a part of the draw and water course are "watering holes" for live stock. Defendants had accumulated lakes or ponds of refuse oil, salt, and sulphur water near the source of Garrison draw and plaintiff's land. On or about August 10, 1932, the levees or dams surrounding the lakes aforesaid broke, and the contents overflowed plaintiff's land, poisoning, killing, and damaging the vegetation, and polluting the said watering holes and water course. Negligence, in various particulars, on the part of defendants, in permitting the levees and dams to break and the water to overflow plaintiffs' land, was alleged. It was alleged the land had been permanently damaged by such overflow, for which damages Mrs. Turner sued.
At the same time Price Turner filed suit against the same defendants. His suit arises out of the same facts set up in Mrs. Turner's suit. Price Turner's suit is to recover damages to his cattle and sheep being pastured on said sections 1201-1206, and surrounding lands in his pasture.
The court ordered the consolidation of the two suits and tried the same as one.
The first five issues submitted read:
The first issue was answered "Yes" and the others "No." Additional issues, conditionally submitted, were not answered.
Upon the answers to the issues above quoted, judgment was rendered for the defendants.
We will not consider the propositions submitted by appellants in the order of their presentation in the brief.
The evidence shows that in August, 1932, water escaped from the reservoirs maintained by defendants and flowed down Garrison draw, overflowing portions of Mrs. Turner's land and collecting in the water holes in the draw upon said land. It is contended this water was polluted with salt, injured Mrs. Turner's land and the vegetation thereon, in consequence of which Mrs. Turner's land was damaged and Price Turner's cattle and sheep were injured by the polluted vegetation and water in the water holes.
Various propositions assume that Garrison draw is a water course; that the pollution with salt water of such water course and water holes is prohibited by article 698 of the Penal Code and chapter 42, Acts 42d Legislature, 1st Called Sess., p. 88 (Vernon's Ann. P. C. art. 698a), and for that reason the defendants were negligent per se in permitting the escape and flow of such water down the draw.
The water holes were privately owned by Mrs. Turner. They were not public bodies of water, such as are referred to in article 698. For that reason said article has no application to the pollution of the water holes.
The act of the Forty-Second Legislature prohibits the pollution of "any stream, water course or natural body of water of this State." (Italics ours.)
The petition seems to have been drawn with the view of charging a violation of the act upon the theory that Garrison draw is a water course, but it is alleged that "there is situated on said two sections of land along said draw, and a part of said draw and water course, watering holes for livestock, such watering holes furnishing a continuous supply of water for livestock, some of said watering holes being several hundred yards in length." If the act has any application, this is perhaps sufficient to show that such watering holes are natural bodies of water.
Price Turner testified concerning one "watering hole" which he said was three or four hundred feet long and about fifty steps wide. He said there were some other watering holes, but did not state their size.
The act in question is a penal statute; offenders being punishable by fine. It is strictly penal in the sense that the penalty is imposed upon offenders as punishment for a wrong to the public rather than for the redress of injury to individuals. 59 C. J. 1111.
Upon a reading of the entire act, including its caption, we think that, so far as concerns a "natural body of water of this State," it refers to waters owned by the state, and not to natural bodies of water privately owned, as are the watering holes in the draw upon Mrs. Turner's land. We think the phrase "of this State" is used in the sense of ownership. Throughout the body of the act it refers to "natural body of water of this State," and we think it refers to waters owned by the state in trust (see article 7467, R. S.), and not to waters privately owned.
For these reasons we are of the opinion the salt water pollution of the watering holes does not constitute a violation of article 698, R. C., nor the act of the Forty-Second Legislature, unless it can be said that Garrison draw is a water course within the meaning of the laws mentioned.
In common parlance, any natural depression through which surface water flows is considered a water course. But in a legal sense the term "water course" has a much more restricted meaning.
In Hoefs v. Short, 114 Tex. 501, 273 S. W. 785, 787, 40 A. L. R. 833, Chief Justice Cureton said:
In that case Judge Cureton held Barilla draw to be a natural water course to which riparian rights attached.
In the course of the opinion it was further said: "The general rule is that ravines, swales, sloughs, swamps, and marshes are not water courses, and yet they are sometimes."
The authorities all agree that a water course in its legal sense must have certain essential characteristics. It is usually stated that it must have a channel, with a well-defined bed and banks, and a current of water with a permanent source of supply. Hoefs v. Short, supra.
Barilla draw had a channel with well-defined bed and banks. Water flowed therein following rains in the area which it drained. The Court of Civil Appeals recognized that it had all of the essential characteristics of a water course except a permanent source of water supply. 190 S. W. 802. Judge Cureton held it had this essential feature.
In the case at bar, the evidence is silent as to whether Garrison draw has a channel with well-defined bed and banks. There is but little testimony with reference to the flow of water therein. Turner testified it took a good rain to...
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