Stearns v. Smith

S.D. Texas

Stearns v. Smith

551 F. Supp. 32, 1982 U.S. Dist. LEXIS 15518

CourtDistrict Court, S.D. Texas

DecidedSeptember 3, 1982

DocketCiv. A. H-78-1262

StatusPublished

Cited by3 cases

This text of 551 F. Supp. 32 (Stearns v. Smith) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stearns v. Smith, 551 F. Supp. 32, 1982 U.S. Dist. LEXIS 15518 (S.D. Tex. 1982).

Pincite

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

McDONALD, District Judge.

This action was tried before the Court without a jury on September 8, 9, and 10, 1981. Plaintiff seeks damages for violation of his constitutional rights under the Fifth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983, and under the theories of negligence, strict liability, trespass and nuisance. He claims that defendants’ modification of Spring Branch Creek by construction of a cement liner caused permanent *34 damage to his property and ousted him from the exclusive use, enjoyment and possession of it.

The claims against defendant Haile were dismissed at the conclusion of trial under Rule 41(b), Federal Rules of Civil Procedure. Having considered the evidence, the arguments of the parties and the applicable law, the Court concludes that judgment should be granted to defendant G.H. Smith as well. Pursuant to Rule 52, Federal Rules of Civil Procedure, the Court now enters the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Plaintiff, Stanley D. Stearns, resides at 15 Pine Street, Harris County, Houston, Texas. He owns a piece of property approximately rectangular in shape which borders Spring Branch Creek on the south, Peck Road on the west and Pine Street on the north. It consists of Lots 1, 1A and a portion of Lot 2 of Block Number One in Pine Creek Village as surveyed by Robert Vince, platted by Ralph C. Hinton and recorded in the Map Records of Harris County, Texas, Vol. 162, at p. 34. The plat and field notes indicate that the property extends to the center line of Spring Branch Creek (PX 9).

2. Defendant G.H. Smith, sued in his individual capacity, was the Director of Harris County Flood Control District (HCFCD) from 1975 to 1979.

3. Defendant Charles R. Haile, Inc. (“Haile”) is a consulting engineering business engaged primarily in municipal engineering design.

4. The HCFCD is a governmental agency, a subdivision of the State of Texas created by an act of the legislature in 1937 to consolidate thirteen drainage districts. HCFCD has responsibility for:

control, storing, preservation, and distribution of the storm and flood waters, and the waters of the rivers and streams in Harris County and their tributaries, for domestic, municipal flood control, irrigation, and other useful purposes.

1937 Texas Gen.Laws, ch. 360 § 1 at 714. Specifically, it has the power under section 2(e) of the Act “To devise plans and construct works to lessen and control floods, to reclaim lands ... to remove obstructions natural or artificial, from streams and water courses,” and under § 2(j) “[t]o do any and all ... acts or things necessary or proper to carry into effect” its powers, including the power of eminent domain.

5. Spring Branch Creek which empties into Buffalo Bayou has been subject to recurring flooding in Harris County. Voters approved a bond issue to provide flood control improvements for Spring Branch Creek.

6. The preliminary phase of the Spring Branch Creek Improvement Project was conducted by engineering consultants Turner Collie and Braden, Inc. They developed a hydrological study.

7. Defendant Haile was contracted by HCFCD in 1976 to develop a detailed design plan for the improvement of a section of the Spring Branch Creek stretching from Bingle Road to beyond Peck Road.

8. Haile designed a cement liner for the Creek which would have extended beyond Peck Road and crossed the property north of the line indicated as # 42 on PX 3. Haile informed HCFCD of the lack of recorded easements along the proposed route of the liner and indicated in its drawing of the plan “Row to be acquired” over the property east of Peck Road and north of the Creek. (PX 6)

9. Upon acceptance of the design by HCFCD, and with the exception of certain ■additional modifications made in response to citizen input which HCFCD solicited, Haile’s relationship with HCFCD terminated.

10. Spring Branch Creek in the area of plaintiff’s property, is normally ten to fifteen feet wide. In rains it reaches the level indicated as # 42 on PX 3, which is approximately one fifth of the distance from the *35 center line of the creek to the high bank mark.

11. The practice at HCFCD was to measure the bed of a stream as extending from the high bank line on one side of the stream to the high bank line on the other side. According to defendant Smith the high water mark usually coincided with the high bank mark. The high bank mark of Spring Branch Creek on plaintiffs property is indicated as # 18 on PX 3.

12. Defendant Smith was advised by the HCFCD Right of Way Department that no right of way was required over this property because the liner would fall within the high banks of the creek which were owned by HCFCD.

13. On January 24, 1978, plaintiff purchased for $112,000 the property including a building to the west of Peck Road and north of Spring Branch Creek. He acquired it in fee simple without any easements in favor of HCFCD and his title search indicated there were no easements in the plat as of July 19, 1978. When he purchased the property plaintiff had no notice of the proposed modification of Spring Branch Creek.

14. Plaintiff prepared plans and obtained building permits to convert the building on the property to several single-family residences; he removed the tenants and commenced construction in May, 1978.

15. Plaintiff filed this action in federal court on July 3,1978, after he heard rumors about the construction of the cement liner in the creek. On August 30, 1978, plaintiff filed suit in state court (Action No. 78-35379) against Harris County and the HCFCD. That state action is still pending.

16. By the end of July, 1978, plaintiff had spent $40,000 on demolition and improvements.

17. After plaintiff filed suit, defendant Smith and/or HCFCD determined to end the liner at Peck Road so that it would not extend over what plaintiff claimed was his property, in order to avoid delay in construction of the liner which litigation would cause.

18. Haile was not consulted regarding HCFCD’s decision to truncate the liner at Peck Road.

19. The property bordering Spring Branch Creek which plaintiff acquired has eroded over the years as a result of the action of the water in Spring Branch Creek, particularly after heavy rains. A tree fell over due to the sandy soil conditions prior to the construction of the liner. According to Defendant Smith erosion has continued for the past thirty years.

20. After construction of the liner was completed plaintiff, at • a cost of $10,000 constructed a concrete wall on the top of the bank of the creek and poured concrete pilings into the bank for the purpose of mitigating anticipated erosion on the south and west borders of his property.

21.

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