Crow v. State

PER CURIAM.

This is a suit brought by appellant, Joe Crow, against appellees, the State, the State Highway Department, its individual members and the Highway Engineer, to recover compensation for the taking of or damage to property under Texas Constitution, Art. 1, Sec. 17, Vernon’s Ann.St. The Legislature granted appellant permission to bring the suit on April 5, 1954, by House Concurrent Resolution No. 30.

In 1951 appellant purchased a tract of land in Travis County containing 61 acres, more or less. The trace is bounded on the east by Burnet Road which was formerly designated as U. S. Highway 183 and pri- or to that as State Highway 29. During the period from February, 1947 to March, 1948 the Highway Department, caused improvements, additions and alterations to be constructed on the above highway adjacent to the property purchased by appellant.

Prior to this construction and in 1941 a deed from Chas. J. Anderson and wife, the then owners of the above land and appellant’s grantors, was secured. This deed recited a consideration of $13 and conveyed a tract of land 60 feet by 192 feet described as “lying within the limits of the right of way of relocated State Plighway 29” and containing .046 acres. This tract was out of the southeast portion of the Anderson land. This deed also provided that:

“The undersigned grantor herein for the same consideration hereby specially agree that the consideration above recited includes adequate and complete compensation for any and all damages, present or future, that may be done to the remainder of the tract above referred to and in consideration of the premises and the ■ payment to us of the sum of money • above acknowledged, we hereby release the State of Texas from any and all damages, if any, present or future, that may be lawfully done to the remainder of our said tract of land by virtue of the construction and maintenance of the new proposed Highway No. 29, or by virtue of any lawful drainage in connection therewith or by virtue of any lawful operations of any nature in connection with said road and its appurtenances.”

As material here the improvements and alterations consisted of the removal of two metal culverts running- from east to west under then Highway 29 and adjacent to the Anderson property. These metal culverts were 24 inches in diameter and in their place a concrete culvert was constructed which consisted of two channels each being five feet wide and three feet high. At this time there was an earthen dike along the east boundary of the Anderson land it having been placed there by Anderson’s grantor.

It was alleged that no damage had resulted to the land from water draining onto it until after appellant acquired it and further that water from the northeast and east was diverted through the concrete culvert onto appellant’s land causing the damage here sued for.

A jury trial was had and 14 special issues were submitted. However due to .findings and instructions only six were answered. The jury answered: (1) that prior to appellant’s purchase of the land there had not been any substantial injury to it; (2) that drainage from the highway did not do substantial injury to appellant’s land after he purchased it; (8) that the parties to the right of way deed intended to release damages caused by an unnatural diversion of water onto the land; (9) that at the time the Andersons signed the right of way deed and at the time the State accepted it the parties reasonably foresaw the diversion of water from the highway onto the land; (10) that prior to his purchase appellant was not aware of potential damage to the land from overflow by water, and (11) that prior to the construction of Highway 29 the natural drainage of water was down the barrow ditches on the east side of the land. On these findings of the jury a judgment that appellant take nothing was rendered.

Appellant here presents two points to the effect that the jury’s answers to issues two, eight and nine are contrary to the great weight of the evidence if not to the uncontradicted and undisputed evidence and are not supported by evidence having probative value for which reasons the trial court erred in overruling his motion for judgment non obstante veredicto and in overruling his motion for a new trial. By one counterpoint appellees join issue with appellant on his two points supra.

There is no controversy as to the jury’s answers to issues one, ten and eleven. Also we note that issues two and nine inquire respectively as to drainage and diversion of water from the highway and issue eight inquires as to the unnatural diversion of water onto the land. The parties here treat the jury’s findings as relating to the drainage of water from the areas to the east and northeast of appellant’s land. In our consideration of the evidence we will do the same as there is no dispute that water from the areas to the northeast and east drained to the east side of the highway. The dispute is as to the discharge of this water onto appellant’s land through the concrete culvert and resulting damage.

The evidence shows without dispute that, the highway not considered, the natural drainage of surface water is from the northeast and east to the southwest and west across appellant’s property. Also that there is drainage of surface water from an area of from 300 to 356 acres of land to the east side of the highway. Prior to the construction of old Highway 29 there was a county road along its route. The evidence also shows that prior to the alleged damage in question there was no overflow of the dike along the east boundary of the land.

Mr. Fincher, the engineer in charge of the engineering work at the time the culvert in question was constructed, testified that he never saw water from the culvert go over the earthen dike along the boundary of the Anderson property; that looking southwest from the culvert there was a slight drain or swale across the land which was pasture and sodded and said:

“I don’t recall any defined ditch in it, but there was a low where water before that had drained that way. * * *

“Q. Did you in your function as Highway Engineer for the Highway Department direct that an easement be obtained from the Andersons from the culvert across the property on that diagonal? A. My memory is that I sent my assistant to see Mr. Anderson to see if we could get an easement across his property, and we were unable to get that easement to take that water down that drain.

“Q. Did you want to get an easement so that you could let water come out of the culvert and across Mr. Crow’s property in that little swale that you are talking about? A. That was Mr. Anderson’s then.

“Q. You wanted the easement, but you were not able to get it. A. That’s right.”

He located the concrete culvert in question as being at the northeast quarter of the Joe Crow property and said that he left the Highway Department in 1954.

Chas. J. Anderson testified that he owned the land from 1910 until he sold it to appellant in 1951; that during all of that time there was an earthen dike along the east boundary and that water never overflowed it and that at the time he sold the land to appellant there was no wash across it but that there is one now. Mrs. Anderson gave testimony which was substantially the same as that given by Mr. Anderson.

The witness Archer testified that he leased the land in 1951 for grazing and for farming; that at that time the drainage had not damaged the land and did not interfere with his farming operations but that about 1952 his corn crop was damaged along the “wash” which had not been there prior to that time.

Appellant testified that at the time he bought the land there were no washed or eroded areas across it and that there is now.

Mr. Kellersberger, a civil engineer, testified that the drainage of water from the area northeast and east of the highway, which he said was about 336 acres, was diverted to appellant’s land through the concrete culvert. He said he was on the land in 1954 and made a topographical survey of it. This map was introduced in evidence and was explained by him. It shows a washed and eroded area connected with the concrete culvert and extending across appellant’s land to the southwest. He computed this area as being about ten acres, varying in width from -500 to 160 feet and varying in depth from 3.4 to 1.7 feet. He testified that before the culvert was there that the water from the area to the east and northeast would tend to drain down the east side of the highway and that the culvert diverted it to the west side.¹

We quote from the testimony of Mr. Ed Bluestein, District Engineer of the Austin District of the Texas Highway Department who testified for the State:

“Q. Mr. Bluestein, did you have occasion to go out and look at this property this past week? A. Yes, sir, I did.

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“Q. Did you look at the property from more than one point? A. I looked it and crossed over into the property and got a few grass-burs and needle-grass, I think, yes, sir.

“Q. Now, tell us about the drainage on the property there. You may use this map, Plaintiff’s Exhibit No. 10. A. These are contours drawn at one foot intervals apparently, showing the grade of that highway, just the natural ground, is Elevation 724 over on this northeast corner of the tract of ground, and coming on down it drops to about 704, which is a twenty foot fall from the northeast corner to the southwest corner of that tract of ground.

“Q. Is that also fairly visible to the naked eye, that the land slopes in that direction? A. Yes, sir; it is-easily detected that the land slopes away from the highway.

“Q. Did you have occasion to look at the culvert up near the northeast corner of the property? A. Yes, sir; we looked at that culvert, also.

“Q. Did you see where the water comes through the culvert? A. Yes, sir.

“Q. What kind of drainage leads from there, if any, across the property? A. There is what appears to be a natural drain. I don’t know, Mr. Fletcher, just what—

“Q. The place you noticed there just inside his property from the culvert there, is it deeply. rutted ? Is it shallow? Is it wide? Is it narrow? A. There was no evidence of any kind of any erosion. There were no gullies. Of course, it is all in pasture and the water apparently just went down its natural course with no damage of any kind.

“Q. Did you find any other natural drainage places across that northeast corner? A. Yes, sir. We wandered down the Burnet Road to the south and there were two or three others that really looked more pronounced, and this contour map, of course, picks them out. At 300 feet here is another series of contours that shows a natural drain, and a little further there is another one. The contours also show here the Burnet Road at about 718. That is inside the property. That is on the property proper and near the southeast corner of the tract, as compared with 704 at the southwest corner. In other words, that is a fourteen foot fall down here, as compared to a twenty foot diagonally. * * *

"Q. Now, Mr. Bluestein, is that property covered in grass? A. Well, it is grass and weeds — just vegetation, I would say.

“Q. Pretty tall, some of it? A. Well, it probably had not been mowed in a long time.

“Q. How long were you out there? A. I think — what is today?

“Q. This is Tuesday. A. I think that was last Friday.

“Q. Didn’t you see about 300 feet inside the property several acres had been mowed? A. No, sir, I didn’t.

“Q. You didn’t notice that? A. No, sir.

“Q. How deep did you go into the property ? A. I went in about 50 feet, I would guess.

“Q. Mr. Bluestein, as far as you know, are these computations here by Mr. Kellersberger of widths of 300 to 500 feet, are there depressions in that wash of two and a half feet in depth to three and a half feet in depth? A. Is that on the property under discussion, Mr. Tisinger?

“Q. Yes, sir. A. I couldn’t vouch for that, Mr. Tisinger.

“Q. Could you deny it? A. I couldn’t vouch for it.

“Q. Well, you don’t have any data to dispute it, do you Mr. Bluestein? A. I have no data to dispute it or affirm it, Mr. Tisinger.

“Q. How long did you stay there, Mr. Bluestein? A. When we were looking at this property?

“Q. Yes. A. I guess thirty minutes.

“Q. Now, it is in evidence that Mr. Kellersberger got the data showing this wash in June of 1954. You were still maintaining the property at that time, weren’t you ? A. I believe that’s right.

“Q. Now, you referred to that wash as a natural drain, and you referred to another one down towards the center of the property as a natural drain. Now, Mr. Bluestein, you don’t know when those water courses were created, do you? A. I would answer that, Mr. Tisinger, by saying I do not; but these contours indicate that the slope of the land has been that way for years and years.

“Q. It is in evidence from Mr. Fincher, one of your former engineers, that when he was in charge he did not ever see any water cross that dike. Now, you never saw any water cross that dike, did you, Mr. Bluestein? A. I have been by there on occasions when it was raining, and I think water was going practically everywhere.

“Q. When was the first time you saw it ? A. I don’t know exactly. The last year and a half it has been continually raining to a considerable excess, and I think during that time I have seen that Burnet Road flooded, including that section there.

“Q. In any event, when you saw it with the water going over it, it would be at some time since 1952? A. Yes, sir. I was not here prior to that. It would have to be after that.

* * * * * *

“Q. In other words, you do not think the ditch on the east side of the Burnet Highway and that culvert tends to create any more water going across Mr. Crow’s property? A. No, sir, I do not.”

It is our opinion that the evidence as a whole does not so preponderate as to condemn the answer of the jury to Special Issue No. 2 as being clearly wrong or manifestly unjust. It seems to us to raise a typical and exclusive jury issue. Credible and qualified witnesses testified for both sides and it was for the jury to consider their interests, motives, appearance and the conflict in their testimony in the light of the jury’s experience and common knowledge and to arrive at a just and fair verdict. This we believe the jury has done.

In view of this conclusion it is not necessary that we consider or decide any other question presented by the parties and we do not do so.

The judgment of the trial court is affirmed.

Affirmed.

1 . The above portion of this opinion was prepared by Associate Justice Gray who in the full opinion prepared by him for the Court reached the conclusion, inter alia, that the answer of the jury to Special Issue No. 2 was contrary to the weight of the evidence.