City of Texarkana v. Rhyne

It was affirmatively proven, as shown in the opinion, that the city, in the purpose of regulating the flowage of water, as a public street improvement, walled and covered over with concrete a ditch. As a consequence of the negligent construction in rainfalls there was, as a constantly recurring grievance, overflowage of water upon the adjoining lot of the appellee, which would stand upon a portion of the lot and up to and under the residence thereon, interfering with the use and enjoyment, and causing actual physical injury to the property. The evidence is affirmative that the overflowage of water on the lot was not occasional, but constantly recurring in rainfalls, causing injury to the property. The street structure complained of is permanent in its nature. As the constantly recurring overflowage of water in rainfalls injuriously affects, as it does, the entire property as a unit, and not the residence or the lot separately, the measure of damages applicable, it is believed, is the depreciation in the value of the property, and not the cost of raising the grade of the lot and of the foundation of the residence. Pacific Express Co. v. Lasker Real-Estate Ass'n, 81 Tex. 81,16 S.W. 792; Rosenthal v. Taylor, B. H. Rwy., 79 Tex. 325,15 S.W. 268; Galveston, H. S. A. Ry. v. Becht (Tex.Civ.App.)21 S.W. 971; Denison P. S. Ry. Co. v. O'Maley (Tex.Civ.App.)45 S.W. 227; City of Paris v. Allred, 17 Tex. Civ. App. 125, 43 S.W. 62; 40 Cyc. p. 589; 27 R.C.L. § 51, p. 1122.