The Constitution limits compensation to damages "for or applied to public use," and judicial restraints have narrowed that phrase to damages which arise out of or as an incident to some kind of public works. City of Amarillo v. Stockton, 158 Tex. 275, 310 S.W.2d 737 (1958); Dallas County Flood Control Dist. v. Benson, 157 Tex. 617, 306 S.W.2d 350 (1957); Texas Highway Dept. v. Weber, 147 Tex. 628, 219 S.W.2d 70 (1949); State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941); Sinclair Pipe Line Co. v. Lipscomb, 308 S.W.2d 584 (Tex.Civ.App. Fort Worth 1957, writ ref'd n. r. e.); Bexar Metropolitan Water Dist. v. Kuntscher, 274 S.W.2d 121 (Tex.Civ.App. San Antonio 1954, no writ); Gotcher v. State, 106 S.W.2d 1104 (Tex.Civ.App. Austin 1937, no writ). A more significant restraint, however, was the rule that the damaging must not result from negligence.
If there were no contract of indemnity, petitioner would clearly be entitled to common law indemnity against respondent upon showing that while petitioner was guilty of passive negligence in some respect, respondent breached a duty owing not only to McDonald but also to petitioner. City of Amarillo v. Stockton, 158 Tex. 275, 310 S.W.2d 737; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609; Humble Oil Refining Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995; Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563; Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449. Since McDonald was an employee of respondent, any right of common law indemnity is precluded by the provisions of Art. 8306, Sec. 3, Vernon's Ann.Civ.St.
This is not the law. See Tex.Jur. Sec. 160, p. 450; Texas Sabine Railway Co. v. Meadows, 1889, 73 Tex. 32, 11 S.W. 145, 3 L.R.A. 565; City of Amarillo v. Gray, Tex.Civ.App., 304 S.W.2d 742; City of Amarillo v. Stockton, 158 Tex. 275, 310 S.W.2d 737; see also State v. Brewer, 141 Tex. 1, 169 S.W.2d 468. The trial court submitted the Gray case, supra, to the jury on the absolute liability theory under Art. 1, § 17 of the Constitution.
Petitioner is entitled to the right to try his cross-action against the Hotel Company in the event respondents should recover against him on the trial on the merits. No trial on the merits has been had. City of Amarillo v. Stockton, Tex.1958, 310 S.W.2d 737(1), and authorities cited therein. We express no opinion on the merits of either the main cause of action, or on petitioner's cross-action against the Hotel Company.
Transp. Co. , 99 U.S. at 645 (stating that the right of lateral support protects only soil, not "whatever is placed upon the soil increasing the downward and lateral pressure"); City of Hous. v. Renault, Inc. , 431 S.W.2d 322, 324 (Tex. 1968) (noting that "[i]t is settled" that under the common law, the rule of lateral support does not impose strict liability for damages to buildings); City of Amarillo v. Gray , 304 S.W.2d 742, 745 (Tex. Civ. App.—Amarillo 1957) (op. on reh'g) ("[T]he absolute right to the lateral support of adjoining land without regard to the question of due care or negligence is limited to the soil itself and does not apply to buildings."), aff'd in part, rev'd in part on other grounds sub nom.City of Amarillo v. Stockton , 158 Tex. 275, 310 S.W.2d 737 (1958) ; Simon , 100 S.W. at 1040 (stating that "this absolute right" to lateral support "is limited to the soil itself, and does not apply to buildings or other structures which have been placed upon the land"); see alsoMcGuire v. Grant , 25 N.J.L. 356, 362 (Sup. Ct. 1856) (stating that "the cases denying the right of recovery [for injury to buildings] are so numerous, and the modern cases so uniform, that the question must be considered as finally at rest"); Restatement (Second) of Torts § 817 cmt. d; James C. Smith, Neighboring Property Owners § 4:4, Westlaw NEIGHBOR (database updated Nov. 2018) (stating that "[t]his rule made a good deal of sense in the agrarian society in which it arose" when land had more value than improvements and noting that the doctrine "has failed to evolve to reflect th[e] reality" that "[w]ith the growth of urban and suburban communities during this century, the relative values of improvements and raw land have changed drastically"). Because the absolute duty to
Because "property" includes, for condemnation purposes, incorporeal property, in addition to tangible property, the former kinds of property are susceptible to legal injury and a corresponding legal right to compensation in a condemnation action. See, e.g., Teague, 570 S.W.2d at 394 (right of lawful "development"); State v. Meyer, 403 S.W.2d 366 (Tex. 1966) (right of "access" to public streets); Downs, 367 S.W.2d 153 (right to use and enjoyment free of "nuisance"); City of Amarillo v. Stockton, 158 Tex. 275, 310 S.W.2d 737 (1958) (right to "lateral support"); McGee Irrigating Ditch Co. v. Hudson, 85 Tex. 587, 22 S.W. 967 (1893) ("riparian" right to take water). As pointed out below, however, not every incident of land ownership rises to the dignity of "incorporeal property."
The implication may arise in any number of circumstances. See, e.g., City of Amarillo v. Stockton, 158 Tex. 275, 310 S.W.2d 737 (1958) (city entitled to indemnity from contractor if city becomes liable for injury caused by contractor's work). Generally speaking, however, the right of indemnity exists when the injury results from the breach of a duty that the indemnitor owed both the injured person and the indemnitee. In determining the effect of the indemnitee's pre-judgment settlement and compromise of the plaintiff's claim, we are not assisted by any contract language, of course, because the contract is one implied in law or equity.
(emphasis supplied). Renfro Drug Co. v. Lewis (Tex. 1950) 149 Tex. 507, 235 S.W.2d 609 at page 623; Austin Road Co. v. Pope (Tex. 1949) 147 Tex. 430, 216 S.W.2d 563, at page 565; Wheeler v. Glazer (Tex. 1941) 137 Tex. 341, 153 S.W.2d 449, at page 451; City of Amarillo v. Stockton (Tex. 1958) 158 Tex. 275, 310 S.W.2d 737, at page 739. Also see Houston Belt Terminal Ry. Co. v. Weingarten (Houston 1st CA 1967) 421 S.W.2d 431, at page 437, NRE. In the instant case, Erath Fertilizer and Farmers Milling were joint tort-feasors along with the Santa Fe insofar as Plaintiff-Appellee Smith was concerned.
On the reversal of the judgment in their favor, they are entitled to have the judgment on their claim over against Louisville Title Insurance Company reversed, otherwise they have not had their day in court on their plea over. City of Amarillo v. Stockton, 158 Tex. 275, 310 S.W.2d 737 (1958); Henger v. Cotton, 159 Tex. 139, 316 S.W.2d 719 (1958). The motion for rehearing of Security Savings and Loan Association is granted in part in order that the court might eliminate from its opinion certain findings of fact and conclusions of law which has been accomplished by substituting this opinion for that filed on May 11, 1972.