Wichita County Water Improvement Dist. v. Pearce

• Decision Date: 18 March 1933
• Docket Number: No. 12788.,12788.
• Citation: 59 S.W.2d 183
• Parties: WICHITA COUNTY WATER IMPROVEMENT DIST. NO. 1 v. PEARCE.
• Court: Texas Court of Appeals

Page 183

59 S.W.2d 183

WICHITA COUNTY WATER IMPROVEMENT DIST. NO. 1 v. PEARCE.

No. 12788.

Court of Civil Appeals of Texas. Fort Worth.

March 18, 1933.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Suit by M. H. Pearce against Wichita County Water Improvement District No. 1. From judgment for plaintiff, defendant appeals.

Reversed and remanded.

A. H. Britain, of Wichita Falls, for appellant.

Luther Hoffman and Otis E. Nelson, both of Wichita Falls, for appellee.

CONNER, Chief Justice.

In 1924 a number of enterprising and forward-looking citizens of Wichita Falls organized, in accord with the terms of title 128, Rev. Civ. Statutes of 1925, what is known as "Water Improvement District No. 1," and for the purpose of furnishing water for irrigation to lands within its district constructed two large dams on the Wichita river, one known as Lake Kemp and the other as Diversion Lake. From the latter lake the district constructed an irrigation ditch extending in an easterly direction on the north side of the river along the foothills or higher ground of the valley so that the water therefrom could be distributed on the lower irrigable lands to the south by gravity flow.

About a year later, to wit, in the early part of 1925, M. H. Pearce, appellee, acquired a tract of land on the south side of the ditch, in rectangular form, containing 11 acres. The irrigation ditch crossed the northwest corner of the Pearce tract and thence extended in an easterly direction on or near its north boundary. At about where the ditch crossed the corner of the Pearce tract a water gate was constructed through which, when elevated, water from the ditch was caused to flow into a lateral ditch extending in a south-easterly direction, from which the Pearce and other lands to the east were irrigated.

On March 26, 1931, Pearce, as plaintiff, filed this suit in the district court of Wichita county against water improvement district No. 1. He alleged that prior to the year 1930 he had planted on his land a peach orchard, alfalfa, and had been able to raise potatoes, corn, rye, peanuts, and every kind of crop; that about the late spring or early summer of that year the vegetation began to die and in a short time did die completely; that seepage waters from the canal and borrow pits and dam constructed by the district drained into and under his land to such an extent that water rose and saturated it, thus bringing up mineral deposits and water-logging his land sufficiently to destroy all of its productiveness and all growth thereon; that before his land was water-logged the tract was reasonably worth in cash $12,000; that it was permanently damaged and not now worth in excess of $2,000; and that he had been thus damaged in the sum of $10,000, which he sought to recover.

Plaintiff alleged that the damage so suffered was proximately caused by the negligence of the district. He alleged five grounds of negligence in the construction of the canal, namely: (a) Construction of an earthen canal; (b) failure to line inside of the canal with concrete, tile, or other impervious substance; (c) construction of gates from canal into lateral ditches; (d) failure to drain borrow pits; and (e) in damming up a small draw above the canal.

Each of these acts of negligence is alleged to have been the proximate cause of plaintiff's damage.

Plaintiff further alleged five grounds of negligence in the operation and maintenance of the canal, namely: (a) That defendant learned after the construction of the canal that water was leaking therefrom and defendant was negligent in failing to install concrete, tile, or other impervious substances in the bottom and sides of the ditch; (b) that gates from the canal to the lateral ditches leaked; (c) that during the years 1929 and 1930 defendant permitted the water in the ditch to flow at a level of from six to twelve inches higher than was reasonably necessary to irrigate the land surrounding the ditch; (d) failure to properly provide drainage for said borrow pits; and (e) failure to construct culvert and drain tank above canal—all of such acts of negligence were alleged to be the proximate cause of plaintiff's injury.

The case was submitted to a jury upon special issues, to many of which assignments of error have been urged. At this point of our conclusions, however, we will notice but two of them, to wit, the first and second, which, together with the answers of the jury thereto, read as follows:

"1. Do you find from a preponderance of the evidence before you that the irrigation District failed to exercise ordinary care in the construction of its canal on and in the vicinity of the plaintiff's land under all the circumstances of the case? Answer: Yes.

"2. Do you find from a preponderance of the evidence that the District failed to exercise ordinary care in the maintenance of said canal, so as to prevent seepage and leakage from said canal on and in the vicinity of the Pearce land, after the same was constructed? Answer: Yes."

We have concluded that each of these issues are erroneous. The distinction between permanent and temporary injuries of the character now under consideration has been pointed out and defined by this court in an opinion by Associate Justice Dunklin in the case of Bowie Sewerage Company v. Vann, 59 S.W.(2d) 180. It may be clearly seen from the authorities in that opinion discussed, as well as from authorities hereinafter cited, that the irrigation ditch or canal, as we shall hereinafter term it, as constructed by the district, is of a permanent character; indeed, the plaintiff has not alleged the canal to be a nuisance and abatable as such. On the contrary, as presented, it is a permanent structure authorized and encouraged by statutory enactment intended to promote the public and private interests of the citizens of the territory served and affected, and as such is not a nuisance per se. In such cases damages approximately resulting from a faulty construction accrue to the owner of the land at the time of the original construction and not to a subsequent purchaser.

In 20 R. C. L. p. 45, § 40, it is said: "To constitute an act or omission the foundation of an action at law it must appear that a duty was due from the actor to the person claiming to have been injured by the Act." And in section 42 of the same volume it is said: "If, while in the possession of either real or personal property, an injury is done to that property, the right of action is alone in the then owner, and not in any successor in the title. And hence a purchaser of cattle which are at the time suffering from a disease communicated to them through the negligence of a third person acquires no right of action against the latter." See, also, Mansfield Const. Co. v. Gorsline (Tex. Com. App.) 288 S. W. 1067; City of Dallas v. Maxwell (Tex. Com. App.) 248 S. W. 667, 27 A. L. R. 927; Crump v. Hellams (Tex. Civ. App.) 41 S.W.(2d) 288; Decatur Land, etc., Co. v. Rutland (Tex. Civ. App.) 185 S. W. 1064; 45 C. J. 639, § 16.

In connection with issue No. 1 as given by the court, we have considered the first paragraph of special charge No. 6, as submitted by the court. This reads in part as follows: "The defendant would not be liable for any injury resulting from natural and ordinary seepage from an earthen canal, unless it failed to exercise ordinary care in its construction or maintenance."

This charge, viewed in connection with issue No. 1, at least authorized the jury to consider as actionable negligence the seepage from the canal if they found that the district had failed to exercise ordinary care in its construction, and the affirmative answer of the jury may have been founded on such consideration. Whereas, as we have seen, the plaintiff was not entitled to rely, as a basis of his recovery, upon negligence in the construction of the canal. We do not wish to be misunderstood on this point, however. As we have seen from authorities already noted, it was the clear duty of the district to operate and maintain the canal with due care to prevent injury and damage to users of its waters, and proof of defects resulting from a want of an exercise of ordinary care in the original construction of the canal would be admissible, as evidence merely, in determining whether under all the circumstances due care had been exercised in its maintenance and in the use of its waters, as submitted in the second issue above quoted. We therefore pass to a consideration of the objections to the court's special issue No. 2.

In the interest of clearness we will here again quote issue No. 2: "Do you find from a preponderance of the evidence that the District failed to exercise ordinary care in the maintenance of said canal, so as to prevent seepage and leakage from said canal on and in the vicinity of the Pearce land, after the same was constructed? Answer: Yes."

It is to be noted that in the consideration of that issue the jury was not limited, as should have been, to the specific acts of negligence alleged in plaintiff's petition, as constituting a want of ordinary care in the maintenance of the canal. See Speer's Laws of Special Issues, p. 239, § 182. Moreover, the plaintiff in this case should not be permitted to recover damages for any injury to his land caused by seepage necessarily incident to the operation of the irrigation system, but should be confined to damages resulting alone from some subsequent act or omission in maintaining or operating this particular kind of irrigation system. See Dew v. American Rio Grande Land & Irrig. Co., 25 S.W.(2d) 603, by Section B of the Commission of Appeals, especially approved by the Supreme Court. Indeed, the court instructed the jury, as shown in the quotation hereinbefore made from charge No. 6, that the defendant district would not be liable for any injury resulting from natural or ordinary seepage from the canal. But we are unable to say that the jury in the consideration of the issue...