Cooper v. City of Dallas , 83 Tex. 239 ( 1892 )

This suit was brought by the appellant to recover damages caused by an overflow of his premises. The case is presented to us upon the following agreed statement:

"Said waters were caused to flow upon said lands, first on April 23 and then on the 24th, 1887, by the city of Dallas, in the exercise of its authority conferred upon it by its charter, by grading and paving Elm Street and Preston Street, the grade of said streets being thereby raised higher than the adjacent lands and the lands of the plaintiff, and by reason of the insufficiency of the sewer laid by the city in the alley in the rear of the plaintiff's said premises, and by reason of the stopping up of a catch-basin on Preston Street at the mouth of said sewer, whereby the waters gathered on Elm and Preston streets were concentrated at a point just east of plaintiff's said home, and were discharged upon his premises.

"Plaintiff's premises at a cost of $500 could have been raised to the grade of the streets so as to have prevented the overflow. It was shown that plaintiff's property, like all other property on Elm and Preston streets, was greatly increased in value by reason of the grading and paving of Elm and Preston streets."

The court charged the jury that the city had the right to grade and pave the streets and to construct the sewer; and further, that "It appearing from the evidence, without contradiction, that the plaintiff contributed by his own negligence to the damages he complained of, and that but for his own negligence such damages would not have occurred, he is not entitled to recover for such damages. You are therefore instructed to return a verdict for the defendant."

We find nothing in the record justifying this charge, or tending to show that plaintiff was guilty of contributory negligence. It is suggested in argument that the charge was given because the court felt constrained to follow an unpublished opinion of the Commission of Appeals in the case of Wallace v. The City of Dallas, rendered in 1884, a case to which we do not now have access.

There are numerous decisions holding that acts done in the proper exercise of governmental powers and not directly encroaching upon private property, though their consequences may impair its use, are not a taking within the meaning of the constitutional provision, and do not entitle the owner of such property to compensation from the State or its agents, or give him any right of action. Chicago v. Taylor, 125 U.S. 164. We do not doubt the correctness of such a decision under laws only requiring compensation to be made for property taken for public use.

The provision in our Constitution now reads: "No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such persons." Const., art. 1, sec. 17. In other States, in whose laws a like change has been made, the right to recover damage where there has been no direct or physical invasion of the property is now recognized. Chicago v. Taylor, supra. The same doctrine was announced by this court in the case of Railway v. Hall, 78 Tex. 169.

"It is the duty of a person to use ordinary and reasonable care and means to prevent an injury and the consequences of it, and he can only recover damages for such losses as could not by such care and means be avoided." Field on Dam., sec. 29.

What constitutes such care and means is a question for the jury to decide. There may be instances in which the diligence to be exercised is so slight that the court may control the issue by its charge. But this case does not belong to that class. There is nothing in the record before us to indicate that it was the duty of the plaintiff to expend $500 to save his property from damage, much less to show that the court could take the question from the jury. While it may be the duty of the injured party to incur a moderate expense to protect himself from damages, what may be treated as moderate will depend upon many considerations, and must be determined by the peculiar circumstances of each case.

There are other questions in the case, but as they were not passed upon in the court below we will not consider them now.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

Adopted February 5, 1892.