McMahan v. City of Abilene ( 1924 )

HIGGINS, J.

Appellant brought this suit against the city of Abilene to recover damages. Exceptions to the petition were sustained, and the suit dismissed.

In substance the petition alleged that plaintiff was the owner of a tract of land on Elm creek upon which he had resided for many years; that his residence, outhouses, garden, etc., were situated in the valley of the creek upon the land and above the ordinary overflow of the creek, and he and his family were entitled to occupy and enjoy the premises in peace and contentment, free from the annoyances and inconveniences caused by the defendant, as hereinafter stated; that he and his family had used and occupied the land for many years free from such annoyances, etc.; that on or about May 26, 1921, the defendant constructed a great earthen dam across Elm creek about four miles above plaintiff’s land, the dam being about one mile long, upwards of 60 feet high, whereby defendant impounded several billion gallons of water; that the creek is a small stream ordinarily less than 30 feet wide and the low lying land near its banks sufficient to carry the ordinary flow and overflow waters of the stream; that the erection of such dam by the defendant was an unreasonable use of its property, unlawful, and an annoyance, hurt, and detriment to plaintiff, and decreased the value of his property in this, that, should the dam break, which is always a possibility and probable contingency with earthen dams, a vast volume of water would be suddenly released and flow down the valley and inundate all of the low lying land and premises of plaintiff including the land upon which the residence and other improvements were situate, and such residence and improvements be thereby destroyed and the safety of plaintiff and his family and their lives imperiled; that shortly after the construction of the dam it sprung a leak which rapidly grew, and the dam would have been swept away but for a providential caving which stopped the leak; that the construction of the dam was a hurt, annoyance, and detriment to the plaintiff and his family, diminished the value of his land, and is a private nuisance as to plaintiff; that after the construction of the dam plaintiff and his family occupied his home in continual fear, especially after the dam sprung a leak, fearing for their lives and property from inundation of the premises by the breaking of the dam, and there is even now a leakage and seepage from the dam which ultimately may cause it to break and flood plaintiff’s land, and that his home is thereby rendered less desirable; he and his family have suffered annoyance and inconvenience and his land thereby diminished in value; that plaintiff abated such nuisance in so far as 'he could by removing his residence, barn, outhouses, and fences to higher ground above the danger of overflow from breaking of the dam and constructed new improvements on the higher ground; and that he was entitled to recover the reasonable and necessary expenses incurred by him in so moving, and reconstructing his improvements, the cost of which was alleged to be $1,000, and was itemized. He further alleged that if he should be mistaken in the measure of his damage, and it was held that the construction of the dam is a permanent nuisance, then. in the alternative he alleged a depreciation in the value of his land in the sum of $1,000, caused by the construction of the dam. Judgment was prayed for his damage aforesaid.

[1] It is a matter of common knowledge that dams frequently give way—especially earthen dams. When large* bodies of impounded waters are thus released, they carry death and destruction of property in their wake. To those living in the valley below the impounded waters they are an ever present impending danger to their lives and property. To parties thus situate, we think, under the authorities, it is clear a nuisance is created, and when a property damage results a cause of action for damages arises. Comminge v. Stevenson, 76 Tex. 642, 13 S. W. 556; Railway v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298, 22 Am. St. Rep. 42; Burditt v. Swenson, 17 Tex. 489, 67 Am. Dec. 665.

[2] The petition does not disclose the purpose for which the city of Abilene impounded the water, but it must have been for some public use and the nuisance for this reason not subject to abatement. Furthermore, in its nature it is of a permanent character. Under such circumstances the proper measure of damages is the resulting depreciation in the value of the property. Rosenthal v. Railway Co., 79 Tex. 325; 15 S. W. 268; Baugh v. Railway Co., 80 Tex. 58, 15 S. W. 587; Railway v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298, 22 Am. St. Rep. 42; Daniel v. Railway (Tex. Civ. App.) 69 S. W. 198; Sanders v. Miller, 52 Tex. Civ. App. 372, 113 S. W. 996.

For the reasons indicated, the court erred in sustaining the exceptions and dismissing the suit.

Reversed and remanded.