Bennett v. Brown County Water Improvement District No. One

272 S.W.2d 498, 153 Tex. 599, 1954 Tex. LEXIS 537

• Court: Texas Supreme Court
• Decided: July 21, 1954
• Docket: A-4415
• Status: Published

Opinions

Mr. Justice Griffin

delivered the opinion of the Court.

Norman Eugene Bennett, eight-year-old son of petitioners, was drowned when he fell into an irrigation ditch owned and operated by respondent as a part of the function of storing and distributing flood waters in Brown County, Texas. Petitioners filed suit for damages against respondent alleging that respondent was guilty of negligence in the construction and operation of the irrigation ditch at the place where young Bennett was drowned; that such ditch and the water therein at the place where the regrettable accident occurred constituted an “attractive nuisance” to one of the tender years of young Bennett; and that the respondent was guilty of maintaining a nuisance at the time and place in question. Respondent filed a motion to dismiss the petition on the ground that the plaintiff’s petition showed respondent at the time and place in question to be a governmental agency engaged in carrying out the public rights and duties imposed upon it by law and for which it was created. The trial court sustained the motion to dismiss and the Bennetts declined to amend, and appealed to the Court of Civil Appeals. In the Court of Civil Appeals the judgment of the trial court was affirmed. 261 S.W. 2d 754.

Upon the trial the following agreement was made between the parties to this litigation, in open court acting through their respective attorneys:

“Brown County Water District owns Lake Brownwood, which is the reservoir for impounding water that the District dispenses to the inhabitants of the District and to the City of Brownwood. This reservoir was created by virtue of issuance of bonds of the District, together with the irrigation canal and the laterals taking off from it; it wholesales to the City of Brownwood and dispenses water to the irrigated lands within the District. On the date of the death of the Bennett child, Brown County Water Improvement District owned and was operating the canal and the syphon at which the death of the child took place; and it is admitted that water was flowing through that irrigation canal at that time, and the water was being flowed through that canal for the purposes for which the District was created. It is further admitted that this canal was constructed in accordance with the plans of — in accordance with the plans and specifications of reputable engineers, and under a contract approved by the Brown County Water Improvement District’s board of directors, acting upon the advice and under the direction of such engineers.”

Respondent was created under the provisions of Article XVI, Section 59a of our State Constitution, and statutes enacted thereunder by the Legislature to carry into effect such constitutional provision.

Section 59a of Article XVI provides, in part, that the conservation and development of all the natural resources of this state, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams for irrigation and all other useful purposes, the reclamation and irrigation of its arid, semi-arid and other lands needing irrigation, the reclamation and drainage of its overflowed lands, and other land needing drainage, and the preservation and conservation of all such natural resources of the state are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto. Subsection (b) of such Section 59 provides, in part, for the creation of conservation and reclamation districts as may be determined essential to the accomplishment of this (conservation) amendment, “which districts shall be governmental agencies and bodies politic and corporate with such powers of government and with authority to exercise such rights, privileges, and functions concerning the subject matter of this amendment as may be conferred by law.” Article 7731, Vernon’s Annotated Texas Civ. Stat. (Ch. 13, Sec. 6, Acts, Rev. Ses., 37th Leg., 1921) with regard to the water improvement districts provides in part, “All such districts shall be governmental agencies, and body politic and corporate, and be governed by and exercise all the rights, privileges and powers provided by law * *

Petitioners admit that this district is “a governmental agency and a body politic,” but contend that the liability of the district is analagous to that of a city; i.e., it is liable for the negligence of its agents and servants resulting in the exercise of proprietary functions as distinguished from governmental functions. Petitioners further contend that the furnishing of water for irrigation purposes to the inhabitants of the District is a proprietary and not a governmental function. We think this matter has been foreclosed by previous decision of this Court, both by this Court’s opinion, and by our “refusal” of application for writ of error (since 1927) in two cases from the Courts of Civil Appeals.

In the case of Willacy County Water Control and Improvement Dist. No. 1, et al v. Abendroth (1944), 142 Texas 320, 177 S.W. 2d 936, 937, Abendroth sought to make the District subject to a writ of garnishment in his favor. The trial court sustained exceptions to the writ upon the grounds that the District was exempt from garnishment by reason of being a body corporate and politic and a political subdivision of the State of Texas. On appeal the Court of Civil Appeals (175 S.W. 2d 90) reversed upon the grounds that the District was a “body corporate and politic * * only in the sense that a city was a “body corporate and politic,” and therefore subject to garnishment under the same rule of law as a city. Cities were held to be subject to garnishment in the absence of a statute exempting them. Since there was no statute exempting water improvement districts, the Court of Civil Appeals held the District to be subject to garnishment. Thus, there was squarely presented to this Court the question of whether or not a water improvement district was a “body corporate and politic” only as a city. This court, after discussing Article XVI, Section 59a of our Constitution, an act of the 41st Legislature (1929, Vernon’s Anno. Civ. Stat., Art. 7880-147c) validating such districts and again declaring these districts to be “valid and existing governmental agencies, and bodies politic,” and the necessity for a specific statutory enactment to make counties, school districts, etc., subject to garnishment, said: (J

“Irrigation districts, navigation districts, levee and improvement districts, and like political subdivisions created under Sec-ton 59a of Article XVI of the Constitution, and statutes enacted thereunder carrying out the purposes of such constitutional provision, are not classed with municipal corporations, but are held to be political subdivisions of the State, performing governmental functions, and standing upon the same footing as counties and other political subdivisions established by law. Harris County Flood Control District v. Mann, 135 Texas 239, 140 S.W. 2d 1098; Wharton County Drainage District No. 1 et al v. Higbee et al, Texas Civ. App., 149 S.W. 381, writ refused; Bexar-Medina-Atascosa Counties Water Improvement District No. 1 v. State, Texas Civ. App., 21 S.W. 2d 747, writ refused; Engelman Land Co. et al v. Donna Irrigation District No. 1 et al, Texas Civ. App., 209 S.W. 428, writ refused; Arneson v. Shary et al, Texas Civ. App., 32 S.W. 2d 907, appeal dismissed, Arneson v. United Irr. Co., 284 U.S. 592, 52 S. Ct. 202, 76 L. Ed. 510; Harris County Drainage District No. 12 v. City of Houston, Texas Com. App., 35 S.W. 2d 118, 120; 44 Texas Jur., p. 262, Sec. 176.”

This Court gave an unqualified “refusal” to the opinion of the Court of Civil Appeals in the case of Jones v. Jefferson County Drainage Dist. No. 6, (1940) 139 S.W. 2d 861, wherein it was sought to hold the Drainage District liable for injury to plaintiff by virtue of negligence of a District employee. A demurrer was sustained to the plaintiff’s petition by the trial court. In affirming the judgment, the Court of Civil Appeals said:

“Drainage districts created under the provisions of Chapter 7 of Title 128, Art. 8097, V.C.S., enacted under authority of Art. 16, Sec. 59a, of the State Constitution, Vernon’s Ann. St., are political subdivisions of the state of the same nature and stand upon exactly the same footing as counties, or precincts, or any of the other political subdivisions of the state. Harris County Drainage District No. 12 v. City of Houston, Texas Com. App., 35 S.W. 2d 118; Wharton County Drainage District No. 1 v. Higbee, Texas Civ. App., 149 S.W. 381; American Surety Co. v. Hidalgo County, Texas Civ. App., 283 S.W. 267, writ of error refused; Parker v. Harris County Drainage District, Texas Civ. App., 148 S.W. 351; Harris County v. Gerhart, 115 Texas 449, 283 S.W. 139; Nussbaum v. Bell County, 97 Texas 86, 76 S.W. 430; Braun v. Trustees of Victoria Independent School District, Texas Civ. App., 114 S.W. 2d 947; 15 Texas Jur. 722.

“In the Gerhart case, supra, our Supreme Court held (115 Texas 449, 283 S.W. 140) : ‘It is well established that at common law counties as a rule are not liable for injuries resulting from the negligence of their officers or agents, and no recovery can be had in damages unless liability be created by statute. Heigel v. Wichita County, 84 Texas 392, 19 SW. 562, 31 Am. St. Rep. 63; Nussbaum v. Bell County, 97 Texas 86, 76 S.W. 430’.

“Since drainage districts are of the same nature and stand upon the same footing as counties, and since counties are not liable for injuries resulting from the negligence of their officers or agents, it logically follows that drainage districts, likewise, are not liable for injuries resulting from the negligence of their officers or agents.”

A holding to the same effect is the case of Peters v. Matagorda County Drainage Dist. No. 1 (1941), 146 S.W. 2d 779. One of the contentions of appellant therein was that this Court, by its “refusal” of the application for writ of error in the Jones case, supra, did not give its approval to the proposition of law that drainage districts were of the same nature and stand upon the same footing as counties, and therefore are not liable for injuries resulting from the negligence of their officers or agents. This contention was set out in the Court of Civil Appeals’ opinion and was specifically overruled. This Court unqualifiedly “refused” an application for writ of error in the case.

It is contended that the above drainage district cases are not authority in this case because a drainage district is partly organized under the police power of the State for the protection of the health and property of its inhabitants. Drainage districts receive their vitality from the same amendment (Section 59, Art. 16, and the public welfare, health and well being is served by a water conservation district the same as by a drainage district.

For an enlightening discussion of the law applicable to causes such as the one at bar see the case of Hodge v. Lower Colorado River Authority (1942), Texas Civ. App., 163 S.W. 2d 855, writ dismissed by agreement of the parties.

The following cases thoroughly discuss the nature and characteristics of the Lower Colorado River Authority, which has been created under Article XVI, Section 59a, and hold that such Authority is a governmental agency, a body politic and possessed of the characteristics and nature as the State and its governmental subdivisions. Such cases also hold that the Authority does not lose its governmental character by virtue of the fact that it generates power and sells the power to individuals, the same as a private utility. Lower Colorado River Authority v. McGraw, 125 Texas 268, 83 S.W. 2d 629; Lower Colorado River Authority v. Chemical Bank & Trust Co., Texas Civ. App., 185 S.W. 2d 461, affirmed 144 Texas 326, 190 S.W. 2d 48. We can see no distinction in the rules of law to be applied to either a drainage district or the Lower Colorado River Authority, or to respondent herein. Each is created under the authority of Article XVI, Section 59, and the appropriate legislative enactments. The people of Texas, in adopting the Conservation Amendment (Article XVI, Section 59) have very plainly set forth that they decree these districts to be “governmental agencies and bodies politic.” The representatives of the people assembled in the Legislature, in carrying into effect the constitutional amendment, have likewise so decreed. It is the duty of the courts to give effect to the will of the people as so plainly expressed.

Petitioners seek to impose liability under the cases of Hidalgo County Improvement Dist. No. 2 v. Holderbaum, Texas Com. App., 11 S.W. 2d 506 and the City of Amarillo v. Ware, 120 Texas 456, 40 S.W. 2d 57, and the authorities therein cited. Liability in those cases was predicated, first, upon the fact that the injury sustained was property damage; and, second, that the city was engaged in a proprietary function at the time of inflation of the injury. The commission of Appeals in the Holderbaum case, supra (11 S.W. 2d 507), bases the liability of the water improvement district upon the “ ‘damaging or destruction’ ” of Holderbaum’s property by virtue of the flooding and seepage from the district’s ditches and canals. The opinion states “* * * The ‘district,’ whatever its degree as a public or governmental agency (Section 59, Art. 16, Constitution), has no immunity from liability for injuries referred to in Section 17, Art. 1.” (State Constitution). The last mentioned section is the one that prohibits the “taking, damaging or destruction” of one’s property by the State, or by state authority without payment of adequate compensation. Judge Nickels expressly states that the “exact character of the ‘district’ is a matter not essential of the case presently made.” In the case at bar, the district is a governmental agency and body politic, and governed by the law applicable to counties. A county is liable only under statutory enactment, and there being no statute making the district liable in a case such as this, no liability can result. Also, the Constitution, Article I, Section 17, specifically makes all governmental agencies liable for taking of, or damage to, or destruction of property. Here no property damage is claimed.

Petitioners cite the case of City of Ysleta v. Babbitt, 1894, 8 Texas Civ. App. 432, 28 S.W. 702, no writ history, as authority for holding the respondent liable in this case. That case involved the liability of a city by virtue of its operation of an irrigation system some 23 years prior to the adoption of the Conservation Amendment to our State Constitution by vote of the people- of Texas in 1917, and the enabling statutes passed by the people’s representatives assembled in the Legislative Session of 1917. Also in the Ysleta case, the city had, by common consent, taken over the operation ,of the irrigation system that had existed for many years prior thereto. Again, liability was sought to be established in that case for failure to furnish water (which it was alleged was available) to plaintiff to enable him to make a crop. Plaintiff was entitled to receive his needed water under an implied contract, as it were, with the city to permit him to continue to use necessary water for the crop year 1892, as he had been using water in the past. In any event, this case cannot be authority that a water improvement district organized under Article XVI, Section 59, is not a body politic and governmental agency.

Petitioners also cite and rely upon such cases as Raywood Rice Canal & Milling Co. v. Erp, (1912), 105 Texas 161, 146 S.W. 155; American Rio Grande Land & Irrigation Co. v. Mercedes Plantation Co. Com. App., (1919) 208 S.W. 904; Edinburg Irr. Co. v. Ledbetter, Com. App., (1926) 286 S.W. 185; Markham Irr. Co. v. Brown, Com. App., (1927) 292 S.W. 863; Garwood Irr. Co. v. Williams, Texas Civ. App., (1951) 243 S.W. 2d 453, n.r.e., and Richman v. Calhoun County Canal Company, Texas Civ. App., (1954) 264 S.W. 2d 738, n. r. e., as authority for liability of respondent district in this cause. The first two of the above cases involved matters arising prior to 1917, the date of the adoption of the conservation amendment. All of the cases involved private irrigation companies, and corporations organized under appropriate subdivisions of Article 1302, Vernon’s Annotated Texas Civil Statutes. All were suits for breach of a contract duty, and also statutory duty under what is now Article 7557, Vernon’s Annotated Texas Civil Statutes, to furnish water pro-rata to all users served by any irrigation system. Not one of those irrigation companies was a water conservation and improvement district as is respondent. It is contented that there should be no distinction as to liability between private irrigation corporations and water conservation and improvement districts. Regardless of what our individual opinion upon that question may be, it is our duty to obey the mandate of the people of Texas when they have spoken so clearly in the adoption of Section 59, Article XVI of our present Constitution. Our government is one in which the people are the sole respository of all power. They are limited only and solely as they have delegated their powers to the various branches of the State government. The people had the right to declare organizations such as respondent to be bodies politic and governmental bodies. This they have done in no uncertain terms. Private irrigation companies can issue no bonds, levy no taxes, and in many other ways differ from water conservation districts.

The importance of water and soil conservation to a state and all of its inhabitants is forcibly demonstrated by the facts of history. Whole civilizations, nations and peoples have perished where the water supply has failed. Surely, the people of Texas were only using good judgment and giving effect to that “self-preservation” which is the first law of nature when they adopted Section 59, Article XVI of our Constitution and their representatives in the Legislature adopted Article 7731 of our Revised Civil Statutes.

Judge Fly, in his usual inimitable and lucid style, has set forth in the case of Bexar-Medina-Atascosa Counties Water Improvement District No. 1 v. State, Texas Civ. App., 21 S.W. 2d 747, writ refused, the reason which prompted the citizens of Texas to confer governmental powers and exemptions upon districts such as respondent.

Petitioners’ pleadings, seeking to establish liability on the grounds of a nuisance, are clearly contrary to the rule of law declared by Chief Justice Alexander in the case of Gotcher v. City of Farmersville, 137 Texas 12, 151 S.W. 2d 565 (2), 566, wherein it is said:

“There are authorities which hold that a municipality is liable for damages caused by the maintenance of a nuisance, even though the municipality in maintaining the same is engaged in the exercise of a governmental function. 43 C. J. 956; 30 Texas. Jur. 537. However, in order to create liability for the maintenance of a nuisance, the nuisance must in some way constitute an unlawful invasion of the rights of others. 46 C. J. p. 653, sec. 18.”

The judgments of both courts below are in all things affirmed.

Opinion delivered July 21, 1954.

Dissenting Opinion