Opinion
No. 2601.
June 22, 1922. Rehearing Denied July 1, 1922.
Appeal from District Court, Hopkins County; Geo. B. Hall, Judge.
Action by Hattie Smith and others against the Hopkins County Levee Improvement District No. 1. From a judgment for plaintiffs, defendant appeals. Affirmed.
The appeal is from a judgment in appellees' favor against appellant for $1,000, the damages a jury found they were entitled to recover because of injury in 1919, 1920, and 1921 to crops, etc., by water diverted, they alleged, from its natural course to and upon 80 acres of land they owned in Hopkins county.
South Sulphur river is the boundary line between Hopkins and Delta counties. The diversion of water was alleged to have been caused by a levee constructed by appellant from a point in Hopkins county south of said river to a dam across same, in that way connecting with a levee extending north from said dam into Delta county. Appellees alleged that the levee in Delta county was constructed in the same manner, on the "same plan, and the same effect" as the one in Hopkins county. In its answer appellant alleged it did not construct the levee in Delta county, and was "without power, right, or authority to construct or attempt to construct any levee improvement work beyond the confines of its district in Hopkins county." In reply appellees, in a supplemental petition, alleged that appellant "built and maintains its levees in Hopkins county with such conditions, and anticipated conditions, and with knowledge thereof, existing in Delta county," and further alleged that "said levee in Delta county was built jointly" by appellant and others, and that the levee in Hopkins county and the one in Delta county were "one scheme and plan" for the purpose of reclaiming land in each of the counties, and that the levee in Delta county was "necessary to the maintenance of the Hopkins county levee." Appellant excepted to the allegations in the supplemental petition referred to, on the ground that it was created under laws which did not permit it to improve property "beyond the confines of the county in which it was organized." The laws referred to in the exception were Act April 1, 1915 (Gen. Laws, p. 229; article 5530 et seq., Vernon's Ann.Civ.St.Supp. 1918), and Act March 21, 1918 (Gen. Laws, p. 40; Vernon's Ann.Civ.St.Supp. 1922, arts. 5107 — 267 to 5107 — 276).
Dial, Melson, Davidson Brim, of Sulphur Springs, for appellant.
R. D. Alien and G. H. Crane, both of Sulphur Springs, for appellees.
Appellant's first assignment of error is predicated on the action of the trial court in overruling its exception to the allegations in the supplemental petition referred to in the statement above. In support of the assignment appellant argues it was liable only for acts and omissions of its supervisors in Hopkins county in the construction of its levee, and not for anything they did or omitted to do in Delta county with reference to or in connection with the existence or construction of the levee in that county.
Doubtless the argument would be sound, if the allegations excepted to predicated the asserted liability of appellant to appellees on conduct of the former's supervisors not connected with the construction and maintenance of its levee. That would be true without reference to where such conduct occurred. But the allegations were not with respect to such conduct. They were directed to acts and omissions of the supervisors in constructing and maintaining appellant's levee. In doing that appellant, or its supervisors, could not ignore conditions existing in Delta county which, in connection with its levee, might operate to unlawfully divert water to the injury of appellees' property. Appellant was bound to construct and maintain its levee with reference to those conditions, and we see no reason why it could not, either alone or jointly with an improvement district in Delta county, do anything not forbidden by law and necessary or proper to be done in that county to avoid such a diversion of water. We have not been referred to, and have not found, anything in the statutes under which appellant was created (Act April 1, 1915, and Act March 21, 1918, referred to in the statement above) which denied it such a right. On the contrary, it seems the exercise of such power was contemplated by the Legislature when it conferred the right of eminent domain upon such districts without limitation as to territory (section 38 [Vernon's Ann.Civ.St.Supp. 1918, art. 5567]), and, also without such limitation, authorized supervisors of such a district:
"To make all the necessary levees, bridges, and other improvements across * * * levees or other improvements * * * thereto, for the purpose of enabling the said district supervisors to construct and maintain any or all of the improvements necessary for the said district." Section 50, Act April 1, 1915 (article 5575).
It should be noted here, because pertinent to appellant's complaint, that the jury were not authorized by the instructions the court gave them to find for appellees, unless they believed the levee appellant constructed and maintained in Hopkins county caused the diversion of water complained of. Therefore, if it was error to overrule the exception to the allegations in the supplemental petition referred to, the error should be treated as harmless.
It appears from bills of exceptions in the record that the trial court, over appellant's objection, permitted the witness Smith to testify —
"as to [quoting] the depth, width, length, and general condition and existence of bar pits in and artificial channel along the west side of the levee belonging to what is known as the Delta county improvement district No. 1 in Delta county."
The witness Calaway to give similar testimony, and other witnesses to testify:
"That [quoting] the waters from South Sulphur get higher during heavy rains on the lands near South Sulphur near said levee in Delta county, than they did before said levee was built in said Delta county."
The grounds of the objection were that the testimony was irrelevant and immaterial, because the appellant district and the Delta county district were "separate and distinct corporations."
As stated above, we think appellant in constructing its levee was bound to take into consideration conditions existing in Delta county which would affect the operation of the levee. Therefore we do not think it was error to admit the testimony, and overrule the assignments presenting the contention to the contrary.
The fifth assignment, the only one remaining undisposed of, will not be considered, because too general. It is that the trial court —
"erred in overruling defendant's amended motion for new trial, for the reason that the verdict returned by the jury to the court is contrary to and against the preponderance of the evidence adduced in the trial of this cause, and is against the law as given in the charge of the court to the jury."
See Washington v. Giles (Tex. Civ. App.) 220 S.W. 439; Bedding Co. v. George (Tex. Civ. App.) 222 S.W. 335; Neill v. Pryor (Tex. Civ. App.) 222 S.W. 296.
The judgment is affirmed.