Bigham Brothers v. Port Arthur Channel & Dock Company, 100 Tex. 192

BROWN, Associate Justice. We adopt the following statement of the contents of the petition made by the Court of Civil Appeals in its opinion: “It was alleged in substance that in 1902 the plaintiffs were the owners of certain lands fronting on Taylor’s Bayou, in Jefferson County, Texas. That the Bayou is a fresh-water navigable stream, wholly within the State, emptying into Sabine Lake, which, though directly connected with the Gulf of Mexico, is generally fresh by reason of the flow of the Nechez and Sabine Rivers in and through it.

That this land is especially suited to the growing of rice, and is of small value for any other purpose. That a rice crop can not be successfully raised except by irrigation; and at certain stages of its growth it requires a large quantity of fresh water. That they planted a rice crop in 1902, and proceeded to irrigate it from Taylor’s Bayou, their only water supply, but that the water of the bayou, which had theretofore been fresh and sweet, had been polluted by the acts of defendant, as hereinafter set out, so that their rice crop withered and died, to their damage of $20,000.

The water was lifted from the stream to the rice lands by means of pumps, and did not flow upon the lands otherwise. The pollution of the water is alleged to have occurred in the following manner: “It is averred that the defendant is a corporation duly incorporated under articles 721, 722, 723 and 725 of the Revised Statutes of this State. That on the 7th of January, 1902, it purchased from its predecessor the canal known as the Port Arthur Canal and Dock Company’s canal.

That this canal was, in 1899, dug from a point on Sabine Pass, along the west margin of the pass and Sabine Lake, through the main land, to Taylor’s bayou, intersecting the bayou at a point about two thousand feet west of its mouth. That the canal is a narrow channel, having a depth of from twenty to thirty feet. That Sabine Lake is an arm or inlet of the sea, being connected with the Gulf of Mexico by Sabine Pass.

That Sabine Lake is shallow and generally fresh by reason of the inflow of the Nechez and Sabine Bivers, and before the construction of the canal the incoming tide instead of rendering the lake and bayou salt would merely raise the level of the fresh water in the lake and cause it to flow up Taylor’s Bayou. That by reason of the construction of the canal the salt water of the sea is at times, carried by the tides directly into the bayou, rendering it salty and unfit for irrigation purposes for over twenty miles from its mouth.

That plaintiff’s land is situated twenty miles from its mouth. “In order to avoid the necessity of a more minute description, we here insert a map taken from the appellee’s brief, which seems to be a fair representation of the situation as alleged in the petition: “The plaintiffs, asserting the right to irrigate from the bayou, and denying the right of defendants to pollute the waters of the bayou for any reason, insist that defendant is liable to them for the damage alleged.

They further claim that the canal, as it is now, is negligently constructed and maintained in this: that, at a comparatively small cost, towit, $6,000 to $12,000, the canal company could construct and maintain a lock and dam in its canal, which, when opened for the purpose, would allow the ingress and egress of shipping, and when closed would prevent the inflow of salt water, and thus the stream would remain fresh.

For this reason, and because the recurring pollution of the water will vastly reduce the value of their lands and practically destroy them for the purpose of rice farming, they ask for a mandatory injunction requiring defendant to put in such a lock and dam as will put an end to the pollution complained of. Nothing was asked in the way of damages except the value of crop lost in 1902. The suit was filed September 2, 1903.

The canal is alleged to have been constructed in 1899, and it is further averred that it was at all times apparent that the construction and maintenance of the canal would, at times, and under varying natural conditions, cause the pollution of the water of the baj^ou.” These extracts contain the parts of the Revised Statutes material to a decision of the questions involved in this case: “Art. 721.

This title shall embrace and include the creation of private corporations for the purpose of constructing, owning and operating deep-water channels from the waters of the Gulf of Mexico along and across any of the bays on the coast of this State to the mainland, for the purposes of navigation and transportation, and for the construction, owning and operating docks on the coast of this State for the protection and accommodation of ships, boats, and all kinds of vessels for navigation, and their cargoes. “Art. 722. Every such channel corporation shall, in addition to the powers herein conferred, have power “3.

To construct its channel across, along, through or upon any of the waters of the bays within the jurisdiction of this State, and so far into the mainland as may be necessary to reach a place for its docks that will afford security from cyclones, storms, swells and tidal waves, with such depth as may suit its convenience and the wants of navigation, not less than five feet, and a width of not less than forty feet.” “5. . . . ; provided, that damages for the property appropriated by such corporation shall be assessed and paid for as is provided for in case of railroads. “6.

To enter upon and condemn and appropriate any lands of any person or corporation that may be necessary for the uses and purposes of such channel corporation,” etc.

The primary object of the State, in permitting the creation of such corporations as defendant in error, was the construction and operation of deep-water channels from the waters of the Gulf of Mexico through the shallow waters along the coast Tor the purpose of navigation.” The secondary and auxiliary purpose was to construct “docks” for the protection of vessels from storms, and, to meet the want of natural harbors and protection along the coast, the channel might be extended into the land to a safe place for the docks, as a retreat from the severe storms which frequent the coast of the State.

The State had, and conferred upon defendant in error, two classes of power, each applicable to different parts of this work. 1. The sovereign power to improve navigable waters within the State. 2. The right of eminent domain in the lands upon the shore and inland, with the power to condemn it for public use.

In constructing the channel from the waters of the gulf to the point in Sabine Pass, where it reached the shore, the corporation exercised the power to “improve the navigable waters,” but, when the mainland was reached, the authority to "improve navigable waters” ceased, because that power was not applicable to the work to be done in extending the channel into the mainland, and was by the law expressly applicable to "any bays along the coast.” The doctrine of eminent domain, with power to condemn, was alone suited to the acquisition of the right of way over the land necessary to accomplish the work of building the land canal and inland harbor.

The power to condemn land was expressly given for that purpose. By the terms of the statute the defendant corporation was authorized to select some point inland as a place of refuge for boats and vessels of different kinds in time of storms, and, under the exercise of the power of condemnation, to acquire the right of way to such point, and all land that might be necessary for the purpose of constructing its docks and other necessary things to constitute a harbor. The canal from Sabine Pass to Taylor’s Bayou was made by the exercise of the right of eminent domain and the power to condemn.

Laying aside, then, all question of the power of the State, or what would be the liability of the corporation for damages arising out of the exercise of the power "to improve navigation,” we must determine what is the liability of the defendant under the allegations of the petition for the damage done by the use of authority to condemn land and the authority to construct a land canal, whereby it conveyed the salt water into Tailor’s Bayou, from which the injury resulted. The following clause of

article 1,

section 17, of the Constitution of this State, prescribes the rule by which the rights and liabilities of the parties to this suit must be determined: "No person’s property shall be taken, damaged or destroyed for, or applied to public use without adequate compensation being made, unless by the consent of such person.” The right of a riparian owner to take water from the stream is property, and comes within the protection of the Constitution as above quoted. (1 Farn. on Waters, sec. 462; Mud Creek Irrigation Co. v.

Vivian, 74 Texas, 174.) In the case last cited, construing a clause of the statute under which the Irrigation Company was incorporated, giving to such companies free use of water, under which it claimed the exclusive right to the water, the court, speaking through Justice Caines, said: “Besides, we are Of the opinion that the provision could be held only to apply to streams upon the public lands of the State, since the T.egislature had no power to take away or impair the vested rights of riparian owners without providing for the payment of just compensation.” The plaintiffs, as riparian owners, had the right to take from the bayou water with which to irrigate their rice farm, and in that right was also included the right to have that water in its natural condition, at least, that nothing should be introduced into it which would be injurious to its quality for irrigation purposes. (Farn. on Waters, secs. 515, 518a; Merrifield v.

Lombard, 13 Allen, 16.) This proposition is not contested by counsel for defendants as we understand their argument, and we think it unnecessary to multiply authorities in support of it. The cutting of the canal through the land being the cause of the injury complained of, the liability must be such as is by law fixed for like injuries, which is, that he who causes damage to riparian rights is liable as if it were any other class of property. (2 Farn. on Waters, sec. 564; Galveston, H. & W. Ry. Co. v. Hall, 78 Texas, 173; Texas & S. Ry. Co. v.

Meadows, 73 Texas, 32.) If the canal had been cut from Sabine Pass across the mainland to a point on the bayou above plaintiffs’ land, and the salt water discharged into the bayou at that point, and, by the law of gravitation, it had flowed down the bayou, mixing with the natural waters of the stream, thereby polluting the stream so as to render it unfit for irrigating purposes, there could be no question that the cutting of the canal and the introduction of the salt water were the cause of the injury to the plaintiffs’ rights.

In what respect can there be a difference from the fact that the canal was cut so as to introduce the water below the plaintiffs’ farm, and, by the action of the laws of nature, was, by the rising of the tide in Sabine Lake, driven upwards to and beyond the plaintiffs’ land, thereby polluting the water with the salt.

Granting, for the sake of argument, that the State might have authorized the defendant to improve the navigation of Taylor’s Bayou and that for doing the work under that authority defendant could not have been made liable for damages, the fact that the navigation was improved, if it be a fact, is no answer to plaintiff’s claim, because it was wholly unauthorized by the State.

Certainly a private corporation, or individual, can not, without authority of law, improve the navigation of a stream to the ruin of the agricultural interests of the riparian owners, and, in answer to a suit .for damages, set up the State’s immunity as a bar to a claim for reparation. Counsel for defendant in error insists that, although the court may have erred in sustaining the general demurrer, yet the judgment should not be reversed for that reason because some of the special exceptions were properly sustained and the plaintiffs did not amend their petition.

The correct rule of practice is thus stated by Chief Justice Willie, in the case of Everett v. Henry, 67 Texas, 405: “We think the petition showed a good cause of action against Henry, and that his general demurrer should not have been sustained. This renders it unimportant whether the special exceptions of the same defendant should have been sustained or overruled.

If they were well taken, it would not have served any good purpose to amend the petition to meet the objections raised; for the court, having held the petition bad on general demurrer, would necessarily have dismissed it though every special demurrer had been met and its force destroyed by a proper aihendment.” That learned chief justice stated the same proposition even more tersely and forcibly in these words in Porter v.

Burkett, 65 Texas, 383: “What does it avail a plaintiff to fortify his petition against a special exception, when, the court, in effect, holds that if he 'does so it is still bad on general demurrer? There can be no use in amending a petition in one particular, when, after amendment, it shows upon its face no cause of action.” The judgments of the District Court and of the Court of Civil Appeals are reversed and this cause is remanded to the District Court for further proceeding. Reversed and remanded.