Todd v. St. Louis Southwestern Ry. Co. of Texas , 1915 Tex. App. LEXIS 13 ( 1915 )

The trial was by the court without a jury. It is contended by appellants that the court's conclusions of fact and law, reduced to writing and copied into the record, should not be considered, because it is not made to appear that he was requested by either of the parties to prepare and file such conclusions. It has been held, correctly, we think, with reference to article 1989, Vernon's Sayles' Statutes, that:

"In the absence of a showing in the record that he was not requested to file such conclusions, the presumption will be indulged that the court filed the conclusions of fact and law because he was requested so to do." Riggins v. Trickey, 46 Tex. Civ. App. 569, 102 S.W. 919.

In the assignments the judgment is attacked as erroneous on two grounds only, stated as follows:

"(1) Because the court erred as a matter of law in holding that the defendant is not liable because the nuisance complained of was not constructed by the defendant but by its vendor. This is error because under the law the excavation or grading made by defendant's vendor constituted and was a continuing nuisance likely to cause damage to plaintiffs' property adjoining by changing the natural flow of water from the lower on to the higher land, and constituted and was a servitude upon the land, and liability went with the ownership of the land.

"(2) Because the undisputed evidence shows that prompt notice and protest was given by plaintiffs to defendant of the injury caused to plaintiffs' property by such nuisance, and the plaintiffs are entitled to recover at least all damages shown to have accrued after such notice, and all cost of preventing further damage."

By referring to the statement above, It will be seen that the court found as a fact that the natural flow of surface water on lots 1 and 2 was not changed by the grading thereof by Hardin. As this finding is not attacked as erroneous in either of the two assignments, this court must treat it as warranted by evidence heard by the trial court. Best v. Kirkendall, 107 S.W. 932; Railway Co. v. Bowles, 88 Tex. 634, 32 S.W. 880; Searcy v. Grant, 90 Tex. 97, 37 S.W. 320; Ennis Mercantile Co. v. Wathen, 93 Tex. 622, 57 S.W. 946; Carrera v. Dibrell, 42 Tex. Civ. App. 99,95 S.W. 628; Faubion v. Western Union Tel. Co., 36 Tex. Civ. App. 98,81 S.W. 56; Deutschmann v. Ryan (Mo.App.) 148 S.W. 1140. In the case first cited above the court said:

"The findings of fact by the court have the same force, and are entitled to the same weight, as the verdict of a jury. This court is authorized to overrule them only when they are without any evidence to support them, or when they are so against the great weight and preponderance of the evidence as to be manifestly wrong. It is not claimed in the assignment of error that the finding of fact of the court referred to is subject to either of these objections. It does not present any such question. We cannot say that it was intended to do so, and we cannot so consider it."

If the natural flow of the surface water was not changed by the grading of said lots 1 and 2, then, obviously, the judgment is not erroneous; for appellants would have no right to complain if the damage suffered was due to surface water flowing from said lots as it flowed before they were graded.

It appears from the record that the motion for a new trial in the court below constitutes the assignments of error relied upon here. It further appears that the term of court at which the trial was had ended eight days before the conclusions of fact and law were filed. If it should be contended that appellants therefore could not, in their motion for a new trial acted upon before the conclusions were filed, have attacked as erroneous the specific finding referred to, the answer is that "in such a case," using the language of the court in Overton v. Colored Knights of Pythias, 163 S.W. 1054, "there should be a distinct assignment of error as to this matter filed with the clerk of the trial court, as required by the statute and rules prior to 1911."

The judgment is affirmed.