Wagner v. City of San Antonio

• Decision Date: 09 November 1977
• Docket Number: No. 6635,6635
• Citation: 559 S.W.2d 672
• Parties: Carlos WAGNER et al., Appellants, v. CITY OF SAN ANTONIO, Appellee.
• Court: Texas Court of Appeals

Page 672

559 S.W.2d 672

Carlos WAGNER et al., Appellants,

v. CITY OF SAN ANTONIO, Appellee.

No. 6635.

Court of Civil Appeals of Texas, El Paso.

Nov. 9, 1977.

Rehearing Denied Nov. 28, 1977.

Appleberry, Deyeso & Haase, Inc., Frederick J. Deyeso, San Antonio, for appellants.

James M. Parker, City Atty., Jackson C. Hubbard, Asst. City Atty., San Antonio, for appellee.

OPINION

WARD, Justice.

The Plaintiffs, Appellants, as landowners and irrigators sued the City of San Antonio to recover damages for breach of contract occurring when the City stopped transporting sewage effluent from its Rilling Road Sewage Treatment Plant through a long established open canal. Trial was to a jury, but upon the termination of the Irrigators' case the trial Court granted the City's motion for an instructed verdict and entered judgment for the City. The Plaintiffs/Irrigators present points that a breach of their contract has occurred; that the City has taken or damaged a valuable property right associated with their lands without adequate compensation being made in violation of Article 1, Sec. 17, of the Texas Constitution; and that the City has benefited through an inequitable and unjust enrichment. We affirm.

At least since the turn of the century, the City of San Antonio has by contract turned certain effluents from its sewage system into Mitchell Lake, the effluent being used by neighboring property owners for the purpose of irrigation. A concise presentment of the factual background to this case is made by the City in its brief as follows: (1) The original controversy is revealed in the case of City of San Antonio v. San Antonio Irrigation Company, 118 Tex. 154, 12 S.W.2d 546 (1929). (2) On May 30, 1932 the City through its City Commissioners duly passed and approved "an ordinance authorizing the settlement of the controversy with the San Antonio Irrigation Company and creating a contract with Charlotte Cassin, Sidney J. Brooks and Cora Ogden for an easement on Mitchell Lake and other property." This ordinance contract was accepted and executed on May 31, 1932, and all Plaintiffs/Irrigators are successors in interest to the San Antonio Irrigation Company and the individual parties to that 1932 ordinance contract. (3) From and after 1932 until October 1, 1970, the City delivered sewage, untreated or treated, from the "sewer farm" and later from the City's Rilling Road Sewage Treatment Plant into the open ditch or canal leading to Mitchell Lake, and the Irrigators and their predecessors in title took water from the ditch or canal and the lake as their needs required. (4) In 1962, at a cost in excess of $300,000.00, the City completed construction of an underground pipeline from the Rilling Road Sewage Treatment Plant to Mitchell Lake a distance in excess of two miles. (5) On August 27, 1963, the City purchased fee title to Mitchell Lake together with an adjacent 9.54 acres but subject to the provisions of the 1932 ordinance contract. (6) On August 21, 1970, the City was enjoined from transporting effluent from the Rilling Road Sewage Treatment Plant to Mitchell Lake through the open ditch or canal unless that portion adjacent to Villa Coronado Subdivision was converted into a closed conduit. Plaintiffs/Irrigators were all parties to the suit in which this injunction was entered against the City. (7) Since October, 1970, all discharges from the Rilling Road Sewage Treatment Plant to Mitchell Lake have been made through the underground pipeline constructed in 1962. (8) Since October, 1970, when the City ceased to discharge any effluent through the open canal, all of the...