Scrivner v. City of Paris

Court of Appeals of Texas

Scrivner v. City of Paris

62 S.W. 1075, 26 Tex. Civ. App. 196, 1901 Tex. App. LEXIS 73

DecidedApril 17, 1901

StatusPublished

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Bluebook

Scrivner v. City of Paris, 62 S.W. 1075, 26 Tex. Civ. App. 196, 1901 Tex. App. LEXIS 73 (Tex. Ct. App. 1901).

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Opinion

RAINEY, Chief Justice.

This suit was originally brought March 17, 1896, by appellant to recover certain special damages, as well as permanent damages to his land, caused by the construction and operation by the city of a sewer. Subsequently, February 18, 1897, appellant deeded to the city a piece of land adjoining his farm, for the purpose of constructing and maintaining thereon a sewer farm. In the deed made by appellant is the following clause: “It is expressly understood and agreed that by executing the deed Serivner did not waive any right or cause of action then pending against the city, or anyone else, by reason of the city sewer and its operation, or the operation of anything connected with it or in conjunction with it.”

On September 29," 1897, plaintiff amended his petition, “abandoning bis suit for permanent injury to his land, and claiming $1700 for temporary damages, sickness of family, and digging pool.” The case was tried on plaintiff’s amended petition, filed October 7, 1899, in which he sought a recovery alone for permanent injury to his land, and judgment rendered for the city.

The evidence shows that the city first built its sewer system in September, 1894, which emptied into Baker’s Branch. After this suit was originally instituted, the city extended the sewer to the land sold it by plaintiff, and upon which it erected the sewer farm. The sewer was constructed across plaintiff’s land, he giving the right of way. The sewer farm was skillfully constructed, and is a public necessity.

The plaintiff alleges permanent injury to his land, caused by the *197 noxious, unwholesome, and sickening vapors which arise from said sewer farm, and which pass over and across his farm, into and around the residence situated on his farm, etc. On this point the evidence is conflicting, but there was sufficient evidence to warrant the verdict of the jury, which is, in effect, that the sewer farm did not emit such vapors, and that plaintiff’s land was not damaged thereby.

We have carefully considered the various assignments of error, and in our opinion none are well taken, and the judgment is affirmed.

Affirmed,.

Writ of error refused.

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RAINEY, Chief Justice.

This suit was originally brought March 17, 1896, by appellant to recover certain special damages, as well as permanent damages to his land, caused by the construction and operation by the city of a sewer. Subsequently, February 18, 1897, appellant deeded to the city a piece of land adjoining his farm, for the purpose of constructing and maintaining thereon a sewer farm. In the deed made by appellant is the following clause: “It is expressly understood and agreed that by executing the deed Serivner did not waive any right or cause of action then pending against the city, or anyone else, by reason of the city sewer and its operation, or the operation of anything connected with it or in conjunction with it.”

On September 29," 1897, plaintiff amended his petition, “abandoning bis suit for permanent injury to his land, and claiming $1700 for temporary damages, sickness of family, and digging pool.” The case was tried on plaintiff’s amended petition, filed October 7, 1899, in which he sought a recovery alone for permanent injury to his land, and judgment rendered for the city.

The evidence shows that the city first built its sewer system in September, 1894, which emptied into Baker’s Branch. After this suit was originally instituted, the city extended the sewer to the land sold it by plaintiff, and upon which it erected the sewer farm. The sewer was constructed across plaintiff’s land, he giving the right of way. The sewer farm was skillfully constructed, and is a public necessity.

The plaintiff alleges permanent injury to his land, caused by the *197 noxious, unwholesome, and sickening vapors which arise from said sewer farm, and which pass over and across his farm, into and around the residence situated on his farm, etc. On this point the evidence is conflicting, but there was sufficient evidence to warrant the verdict of the jury, which is, in effect, that the sewer farm did not emit such vapors, and that plaintiff’s land was not damaged thereby.

We have carefully considered the various assignments of error, and in our opinion none are well taken, and the judgment is affirmed.

Affirmed,.

Writ of error refused.

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Bluebook (online)

62 S.W. 1075, 26 Tex. Civ. App. 196, 1901 Tex. App. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scrivner-v-city-of-paris-texapp-1901.