Opinion
No. 3673.
April 24, 1929. Rehearing Denied May 2, 1929.
Appeal from District Court, Rockwall County; Joel R. Bond, Judge.
Action by John S. Mason against the Rockwall County Levee Improvement District No. 1 and another. Judgment for defendants, and plaintiff appeals. Affirmed.
Appellant, J. S. Mason, was the plaintiff in the court below, and appellee Rockwall county levee improvement district No. 1 and appellee C. B. Davis were the defendants. The suit was (1) for damages to land owned by appellant within said district by waters diverted thereto, appellant claimed, as the result of a failure of the district to properly maintain a ditch dug by its supervisors, and the act of Davis in constructing a described dam on land he (Davis) owned; and (2) for a writ of injunction requiring the district to open and keep open the ditch, and Davis to tear away the dam he had constructed. It appeared from evidence heard at the trial, which was before the court without a jury, that both appellant and appellee Davis owned land in the district (that owned by appellant lying north and west of that owned by appellee Davis); that in 1920 the supervisors of the district, to take care of "hill water," dug a ditch on appellee Davis' land north of what was known as the "Old Interurban Dump," thence across land owned by Charles Peace to land owned by appellant, where it turned south, crossing said dump and extending on in a southerly direction along the boundary line of land owned by appellant on the west and appellee Davis on the east to a slough; that in digging the ditch south as stated a part of the dirt therefrom was thrown on appellant's land and a part on appellee Davis' land; that in 1926 the part of the ditch along said boundary line began to fill up, and water it had before carried to the slough spread out over land belonging to appellant and land belonging to appellee Davis; and that, to protect his land from such water, appellee Davis, in said year 1926, constructed a dam, which caused the water to flow over appellant's land instead. The court reduced to writing and filed "findings of fact" substantially as follows: The ditch opened by the district "was no part of the plan of reclamation" adopted by the district, but same was dug at the request of owners of property in the district, including appellant, who donated the right of way therefor, "for the purpose of draining land in the vicinity." The district made no agreement with any one "to maintain and keep the ditch in repair, but it only agreed to construct" same. In digging the ditch, the district, "with the consent and at the special instance of the parties," piled dirt on one side thereon on land of the plaintiff (Mason) and on the other side of the ditch on land of the defendant Davis." The "natural flow of the water was across the land of plaintiff (Mason), and the dirt that was placed on his land by the district formed an embankment or levee that protected" same; that "the embankment changed the natural flow of the water from the land of the plaintiff, Mason, onto and across the land of the defendant Davis;" and that Davis, "to prevent this water from flowing across his land, constructed a small levee across one end of his land which turned the said water back onto part of the land belonging to plaintiff," Mason. On the facts found by him, the court concluded as matters of law: (1) That appellee Davis had a right "to construct (quoting) a levee on his own premises to protect his land from water deflected from its natural flow onto his land by an embankment on the land of the plaintiff," Mason; and (2) that the district, "without (quoting) any agreement to that effect, was not legally bound to maintain and keep in repair the ditch it had constructed at the special instance and request of all landowners whose land was affected thereby," and rendered judgment denying appellant any relief and in appellees' favor for costs.
Reese D. Wade and H. M. Wade, both of Rockwall, for appellant.
Carl G. Miller, of Rockwall, for appellees.
We think the conclusion of the trial court, that the appellee improvement district was not liable for the damages appellant sought to recover of it, was supported by the finding that the digging of the ditch was not a part of the district's "plan of reclamation." The power conferred by the statute (article 7980. Rev.St. 1925) was to construct and maintain within the district improvements necessary or proper to accomplish the "plan of reclamation" adopted and approved as provided in article 7990. The statute declared it to be unlawful for a district "to construct or maintain any levee or other improvement" without first adopting such a plan and having same approved by the state reclamation engineer. Articles 8027 and 8028. Hence, if the ditch was not a part of the plan, the act of the district's supervisors in digging it was unauthorized. If the act of the supervisors was unauthorized, it was not binding on the district (36 Cyc. 865; 36 C.J. 1012); and, certainly, if the district was not responsible for the existence of the ditch, it was not bound to keep it open. In the court below appellant objected to the finding that the ditch was not a part of the plan of reclamation, on the ground that it was not warranted by the evidence; but the judgment is not attacked on that ground by any of the assignments of error in his brief, ond for that reason this court is not called upon to determine whether the objection was a meritorious one or not. Edson Hamm v. Murray (Tex.Civ.App.) 285 S.W. 659, Saner-Whiteman Lumber Co. v. Ry. Co. (Tex.Civ.App.) 282 S.W. 267.
As appears in the statement above, the trial court found that the water diverted to appellant's land by the dam Davis constructed was water which would have flowed to and over same, instead of to Davis' land, but for the embankment made by dirt thrown by the supervisors on appellant's land in digging the ditch. Appellant insists the finding was unwarranted — that all the evidence showed that the natural flow of the water in question was not to his land, but to and over Davis'. As we understand the evidence it showed that the natural flow of the water north of the interurban embankment was diverted by the digging of the ditch. If the digging of the ditch was not at appellant's request, he was in the attitude of consenting thereto, and for that reason was not entitled to complain of the diversion of water caused by it. And as we understand him he is not complaining of that. His contention is that "the natural flow of water (quoting from his brief) was down the drain (ditch) after same was constructed." "Then," he says, "as the drain became filled and was unable to carry all of the water the natural flow was over land belonging to appellee Davis, therefore (by means of the dam in question) he was diverting the natural flow of water back across said ditch and onto the land of appellant." We think the contention should be overruled. Without respect to the fact that the natural flow of water north of the interurban dump was diverted by the digging of the ditch, and without respect to whether its flow while confined to the ditch should be regarded as the natural one or not, we think it took on the character of "surface water" and subject to the rule applicable to such water when it passed, from the ditch and spread out over appellant's and Davis' lands. 37 Cyc. 612; 40 Cyc. 639; 27 R.C.L. 1064; Gross v. City of Lampasas, 74 Tex. 195, 11 S.W. 1086; Barnett v. Irrigation Co., 98 Tex. 355, 83 S.W. 801, 107 Am.St.Rep. 636; Schalk v. Inter-River Drainage Dist. (Mo.App.) 226 S.W. 277; Drainage Dist. v. Ham, 275 Mo. 384, 204 S.W. 723: Sigler v. Inter-River Drainage Dist., 311 Mo. 175, 279 S.W. 50; Ramsey v. Ketcham, 73 Ind. App. 200, 127 N.E. 204; Horton v. Goodenough, 184 Cal. 451, 194 P. 34; Standley v. Ry. Co., 121 Mo. App. 537, 97 S.W. 244. Prior to the passage of the Act May 29, 1915 (1st Called Sess.), c. 7, § 1 (Vernon's Stats. 1918 Supp. art. 5011t), declaring it to be unlawful "to divert the natural flow of surface waters in this state"; the rule of the common law recognizing a right in a landowner to repel the flow of surface water over his land from lands adjoining same was enforced as the law of this state. Gross v. City of Lampasas, 74 Tex. 195, 11 S.W. 1086; Simon v. Nance (Tex.Civ.App.) 142 S.W. 661; Wilborn v. Terry (Tex.Civ.App.) 161 S.W. 33; Walenta v. Wolter (Tex.Civ.App.) 186 S.W. 873; Hester v. McAdams (Tex.Civ.App.) 203 S.W. 121. If said Act May 29, 1915, was carried into and became a part of the Revised Civil Statutes of 1925, appellant has failed to point out the place in said statutes where it is to be found, and we have been unable to find it therein. As by the express terms of the final title of said statutes said act stood repealed if not included therein, we have not regarded it as in force after said statutes took effect September 1, 1925. If, as appears to be the case, said act had been repealed and was not the law in 1926, when Davis constructed the dam in question, his liability to appellant for damages the latter claimed was determinable with reference to the common-law rule stated above, according to which he was not liable for such damages.
The judgment is affirmed.