Hopkins Cty. Levee Improvement v. Smith , 243 S.W. 793 ( 1922 )

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.