(238 S.W.)

ment awarding all costs against him will be reformed on appeal so as to apportion the costs.

On Second Motion for Rehearing.

10. Appeal and error 832(4)—Judgment contrary to verdict set aside at any stage of appeal.

Where a judgment is contrary to the verdict, the error in rendering it is fundamental and apparent of record and should be set aside even on second motion for rehearing.

11. Trial 365(1)-Finding of Jury on Issue held not to conflict with finding of court from admissions of pleadings and evidence.

Where the only issue submitted to the jury was whether a levee erected by defendant diverted surface water, and the jury answered, "No," but defendant by pleadings and evidence admitted that he extended the levee 20 to 25 feet, there was no issue to be submitted on the extension; the finding of the jury can only be construed in regard to the original levee and in no way conflicted with the court's finding that the extension should be removed.

Lane, J., dissenting.

Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.

Suit by Frank Gaertner against Gerhard Stolle. After hearing temporary injunction dissolved, and, from judgment for defend ant, plaintiff appeals. Reformed and af

firmed.

"That it shall hereafter be unlawful for any person, firm or private corporation to divert the natural flow of the surface waters in this state or to permit a diversion thereof caused by him to continue after the passage of this act, or to impound such waters, or to permit the impounding thereof caused by him to continue after the passage of this act, in such a manner as to damage the property of another, by the overflow of said waters so diverted or impounded, and that in all such cases the injured party shall have remedies in both law and equity, including damages occasioned thereby." Acts 34th Leg. (1st Called Sess.) c. 7 (Vernon's Ann. Civ. St. Supp. 1918, art. 5011t).

That said act became effective and in force on the 26th day of August, 1915, and that after said date the defendant had no right to keep, maintain, or erect any levee or obstruction which would divert the natural flow of the surface water falling upon plaintiff's land or lands above plaintiff or to impound such surface water on the lands of plaintiff which had a natural flowage from plaintiff's land onto the defendant's land and into the Colorado river and thereby causing damage, harm, and inconvenience to this plaintiff.

He further pleaded that after the passage of the act above referred to, and after the same took effect, defendant at various times repaired the levee theretofore constructed by him so as to impound said surface water on plaintiff's land, and that in the year 1918

defendant erected in front of and below the

John P. Ehlinger and John T. Duncan, tenant house of plaintiff a levee of about 25 both of La Grange, for appellant.

yards in length, same being an extension of

C. D. Krause, of La Grange, for appellee. the original levee theretofore made which

obstructed and impounded the surface water in front of and under said tenant house to such an extent as to render said house almost uninhabitable, to the great inconven

LANE, J. This suit was brought by appellant, Frank Gaertner, on the 8th day of September, 1919, against appellee, Gerhard Stolle, to recover damages and for an injunc-ience and damage to plaintiff's tenant. tion.

The substance of plaintiff's petition material to the questions involved in this appeal is as follows:

That during the year 1911, and at a time when it was lawful so to do, defendant Stolle constructed a levee on the common boundary line between his land and the land of plaintiff for a distance of nearly 700 to 1,000 varas for the purpose of diverting and arresting the natural flow of the surface water from plaintiff's land onto and across defendant's land; that said levee does so obstruct the flow of such surface water and impounds the same on plaintiff's land; that said levee was maintained ever since it was constructed by defendant by making repairs thereon, to plaintiff's damage in the sum of $2,000; that the maintenance of said levee during the year 1919 damaged him in the sum of $2,000; that on the 29th day of May, 1915, the Legislature of Texas passed an act by which it was provided as follows:

He also pleaded that there is a road which runs across defendant's land and which has been used by tenants on plaintiff's and adjoining lands in going to and from the town of Ellinger and to the public road for over 30 years; that the right of the owners of the land now owned by plaintiff, and other farms adjoining same, to the use of said road as a roadway and road of necessity, has been recognized and allowed for 30 years, and that if defendant were to close it up plaintiff's land would be greatly damaged as well as the lands of adjoining owners; that defendant is threatening to close said road. He further alleged that all of said acts and threats were maliciously done and made for the purpose of injuring plaintiff. His prayer was for a writ of injunction commanding defendant to remove the levees constructed by him or such portions thereof as will not interfere with the natural flow of the surface water off of plaintiff's land and across defendant's land, and that defendant be enjoined

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

from closing the road through his premises and recover upon his cross-action against plainSO as to prevent persons from traveling tiff and his bondsmen hereinafter set out, and same across defendant's land, and that he that he, defendant, have all such other and have judgment for his actual and punitory further relief, general and special, that he may damages as prayed for and for all costs of show himself entitled to and so he will ever pray." suit, and for general relief.

"Wherefore defendant prays that the injunc- "And it is further ordered, adjudged, and tion herein granted be dissolved, vacated, and decreed by the court that the injunction heretoset aside, and he be permitted to replace the fore, on the 5th day of September, 1919, grantdirt and soil or elevation made between the ed in this case, be and the same is hereby forlands of himself and plaintiff and Wessels and ever dissolved, and it is ordered, adjudged, other adjoining owners as same were before and decreed by the court that plaintiff, Frank said injunction was granted, that the free and Gaertner, do not recover of defendant, Gerhard uncontrolled right to and possession of the Stolle, anything, but that the defendant, Gerroadway be restored to him and he be permit- hard Stolle, do have and recover of and from ted to do therewith as he pleases, and that plaintiff, Frank Gaertner, all costs by him in said injunction be not perpetuated and that this behalf expended, for which he may have plaintiff be not permitted to recover of him his execution, and that the defendant, Gerany damages, nor any right to nor in defend- hard Stolle, may replace the levees and fill ant's land, nor in the roadway thereover, and the gaps and openings made by him under the that plaintiff be not permitted to recover any-orders of the court, except the 25 yards at the thing of any nature whatsoever of this defend- west end thereof, constructed and added to ant, nor awarded any relief whatever against said levee in the fall of 1918, and which 25 this defendant, and that defendant be dis- yards, or so much thereof as has not already charged and permitted to go hence without day been removed and leveled with the surface of

(238 S.W.)

the ground, he, defendant Gerhard Stolle, is The court did not err in refusing this spenow hereby ordered and directed to remove cial charge. There was no evidence authorand level with the ground and not to thereafter izing the submission of any such charge, and it was therefore properly refused.

reconstruct."

From this judgment plaintiff, Gaertner, has appealed.

By assignments 1 to 13, inclusive, complaint is made of the refusal of the court to submit 13 special issues requested by appellant.

By the fifteenth assignment complaint is made of the refusal of the court to set aside the answer of the jury to special issue No. 4 hereinbefore set out. It is insisted that there is no evidence to support such answer. To this contention we are unable to agree. We think the jury's answer was sustained by ample evidence.

[1] The court was not in error in refusing to submit any of the special charges requested by appellant. In our opinion the court [3] Appellant, Gaertner, offered to prove by had submitted the decisive and controlling A. B. Bradshaw and several others that waissue in this case, which was whether or not ter was diverted by the levee, alleged to have the dirt thrown up or plowed up by appellee been constructed by appellee in 1911, prior (denominated levee) between his land and to the passage of the act of 1915, and imthat of appellant diverted the natural flow pounded it on appellant's land, and that by of the surface water over appellant's lands reason thereof appellant was damaged in the and impounded water on appellant's land. | sum of $2,000. Upon objection of counsel for This issue was squarely and fairly submit- appellee that the proposed testimony was ted to the jury in question 4 in the court's being tendered to prove that the water in charge, reading, "Does the levee that was question was impounded by a levee which thrown up by the defendant between his was constructed in 1911, prior to the passage land and that of the plaintiff divert the nat- of the act of 1915, and at a time when it was ural flow of the surface water on appellant's lawful to construct the same, the court susland?" and which the jury answered in the tained such objection, holding that appellant negative, "No." The inquiries sought to be could recover, if at all, only for such dammade by appellant, and refusal of which is age as was caused by such repairs made on complained of in the first to thirteenth as- the levee by appellee since the passage of signments, inclusive, involve merely findings the act of 1915 and such new levee as had upon evidentiary facts or issues merely inci- been constructed since the passage of said dental to the material issue embraced in act. Appellant has made the act of the court question 4, above set out, which controlled in rejecting such proffered testimony the the controversy, and by which the case had grounds of his sixteenth and seventeenth asto be determined. All of those inquiries re-signments of error. In approving the bills lated to mere matters of evidence bearing of exception taken to his action in rejecting upon the controlling issue to be determined such testimony, the court made the followby the jury, and were therefore properly re- ing qualification: fused. Varn v. Moeller, 216 S. W. 234.

A multiplicity of questions should not be submitted to the jury to be answered separately as on special issues, and findings of merely evidential facts should never be required. Cushman v. Masterson, 64 S. W. 1031. The true function of special issues is to elicit the material and controlling facts established by the evidence, and not the evidence by which they are established. Haile v. Johnson, 63 Tex. Civ. App. 199, 133 S. W. 1088.

[2] Appellant requested the court to submit to the jury his special charge No. 14, reading as follows:

"The foregoing bill is approved with the following qualification: Plaintiff was by said testimony seeking to prove up damages to his land by a levee that was thrown up prior to the time the surface water statute was enacted and went into effect on August 25, 1915."

It is apparent that the court restricted the appellant to proof of damages to him, if any, caused by the construction of new levees and repairs to those already made, since it became unlawful to construct and maintain levees, for the purpose of preventing surface water from flowing upon the lands of appellee. We think the holding of the court was correct. That an owner of land in this state had at all times, prior to the act of 1915, the right to construct levees to prevent more surface water from flowing from his neighbor's land upon his land, is unquestioned. Necessarily this right has become a rule of property and of right respecting interests which have vested during a long period of time, and it cannot now be disturbed withThe court refused such request, and ap-out manifest injustice to those who have pellant has made such refusal the grounds acted upon the faith of the law as it existed for his fourteenth assignment. at the time of the act complained of.

"Has the roadway across the defendant Stolle's land been in use for a number of years as a necessary inlet and outlet from plaintiff's land to the regular public road and to the market? And how long has the same been so in use?

"You will answer this question yes or no, and if you should answer it yes, then you will add the number of years it has so been used."

[4] We have reached the conclusion that, From what we have said it is apparent in so far as the act of the Legislature of that we have reached the conclusion that 1915 sought to compel one who had thereto- the measure of damage to which appellant fore lawfully constructed a levee, in which he had a vested right as property, to remove the same, it was retroactive and violative of the provisions of article 1, § 16, of the Constitution, which provides that

"No bill of attainder, ex post facto law, retroactive law, or any other law impairing the obligation of contracts, shall be made."

could have been entitled under any phase of the case would have been only the increased damage occasioned by any repairs, or additions, or extensions, made by appellee to the levee since August 26, 1915, when the act under which this suit was brought went into effect. The court correctly so held, and sought to limit appellant with his proof thereto. Appellant apparently refused to conform to the ruling of the court, and refused to prove his damage, if any, in conformity with the measure of damage applicable in this class of cases, and therefore his sixteenth and seventeenth assignments of error present no reversible error.

[5] We are also of the opinion that as the jury found that the levee constructed by appellee did not divert the flow of the surface water onto appellant's land, and did not impound water thereon, appellant was not entitled to any damages as against appellee, and therefore all the testimony of A. B. Bradshaw and others, tending to show damages by reason of standing water on appellant's land, was immaterial and its exclusion was without injury to appellant.

The levee constructed by appellee in 1911 was lawfully constructed on his own land. It became and was his lawfully acquired property, and served to protect and probably enhance the value of his land; and the Legislature was without authority to provide for its destruction for the benefit of appellant or any other individual. We therefore think that in so far as the act of 1915 provides for the removal or destruction of levees lawfully constructed on one's own premises, prior to the passage of said act, it is void and unenforceable. Property of the citizen in this state cannot thus be taken, even though it be for the use of the public. We think all the established rules of law in this state, constitutional and otherwise, prohibit, and ought to prohibit, the taking or destruction of the private property of one in-out merit and cannot be sustained. dividual for the private use or benefit of [6] By the twentieth and twenty-first asanother individual or set of individuals. The signments appellant complains of the refusright of eminent domain does not imply a right in the sovereign power to take the property of one citizen and transfer it to the use of another. Nor can such transfer be made under police powers of the Legislature. In 6 R. C. L. § 193, it is said:

"While there are no precise limits to the police power, it is not, however, without its limitation, since it may not unreasonably invade private rights, or violate those rights which are guaranteed under either federal or state Constitutions. Accordingly, it is an established principle that the constitutional guaranty of the right of property protects it, not only from confiscation by legislative edicts, but also from any unjustifiable impairment or abridgement of this right. The constitutional guaranty that no person shall be deprived of his property without due process of law may be violated without physical taking of property for public or private use. Its capability for enforcement and adaptability to some use are essential characteristics and attributes without which property cannot be conceived. Hence a law is considered as being a deprivation of property within the meaning of this constitutional guaranty if it deprives an owner of one of its essential attributes, or destroys its value, or restricts or interrupts its common, necessary or profitable use, or hampers the owner in the application of it to the purpose of trade, or imposes conditions upon the right to hold or use it, and thereby seriously impairs its value. These general principles apply not only to statutes enacted by the Legislature but to the action of executive officers generally."

The nineteenth assignment is wholly with

al of the court to require appellee to remove the levee constructed prior to the passage of the act of 1915, and in permitting the repair thereof.

A sufficient answer to this complaint is that the jury found on sufficient evidence that such levee did not divert surface water onto appellant's land, nor impound water

thereon.

Assignment 22 has been answered by what has been said in discussing assignments 16 and 17.

By the twenty-third assignment it is insisted that the court erred in instructing the jury that in the event they should answer question No. 4 in the negative, then it would not be necessary to answer certain other questions.

The assignment is without merit. The answer of the jury to special issue No. 4 rendered it unnecessary for them to answer the other questions.

[7] The twenty-fourth assignment is as follows:

"Because the plaintiff upon information and belief charges that the jury did not fully understand question No. 4 when they answered it, or they were influenced in their answer by the fact that they took into consideration that the defendant had made 16 gaps or openings in said levee and upon the understanding that the defendant was to keep open said gaps in the future, and they answered said question No. 4, 'No.'"

(238 S.W.)

ever, reached the conclusion that, as appelland was partially successful, in that he recovered judgment for a small portion of the relief prayed for, the court erred in adjudging the entire costs of the trial in the lower court against him. We do not think, however, that this error should cause a reversal of the judgment, as the same may be by this court reformed so as to cure the error complained of.

This assignment is vague and indefinite We have, not without serious doubt, howand does not require consideration from us, but we think a complete answer thereto is that no predicate was laid by appellant which would have authorized or justified the court to inquire in what manner or for what reason the jury made the answer they did make to question 4. No misconduct on the part of the jury, as contemplated by article 2021, Vernon's Sayles' Texas Civil Statutes, is charged. Appellant's only complaint, based only upon information and belief, and not actual knowledge, and not sworn to, is:

"That the jury did not fully understand question No. 4 when they answered it, or they were influenced in their answer by the fact that they took into consideration that the defendant had made 16 gaps or openings in the levee."

The court correctly refused to entertain this assignment of error, because not sworn to, and correctly refused to become a court of inquiry to find out how or by what method of reasoning the jury arrived at their ver

dict.

judged against appellant and that one-third thereof be adjudged against appellee, and as thus reformed the judgment of the lower court is affirmed.

Reformed and affirmed.

Appellant brought his suit and prayed: First, for an injunction commanding appellee to remove the entire levee constructed between the land of appellant and that of appellee, and also a levee constructed between the farm of one Wessels and appellee, aggregating more than 1,200 yards in length; second, that appellee be restrained from closing a gate placed upon a road leading through appellee's farm; third, for actual damages in the sum of $2,000 to $4,000; and, fourth, for punitory damages. As before shown, his recovery was for the destruction of that portion of the levee constructed in 1918, Special issue No. 4 was unambiguous and which was only 26 yards in length. We have could be easily understood by any juror of therefore reached the conclusion that the ordinary intelligence, and, besides, it was costs of the trial court should be apporshown that after the charge had been sub- tioned, and having so concluded, we here admitted and the jury had retired and had de-judge that two-thirds of such costs be adliberated for some time, they sent to the court a written question asking the court for further instructions relative to issue No. 4 submitted by the court; that the question asked, in effect, was whether by issue 4 the court meant to ask whether the levee as constructed prior to gaps being cut therein obOn Second Motion for Rehearing. structed the flow of surface water, or after said gaps were cut; and that the court re- PLEASANTS, C. J. Appellee in a second plied that it meant before the gaps were cut. motion for rehearing, which was filed with It is shown that the foreman of the jury was permission of the court, very earnestly insists called, and that he testified that to his that we erred in our original opinion herein knowledge the jury did understand the in- in holding that, because appellant recovered a quiry, and that the findings of the jury were judgment in the lower court awarding him based on the testimony of witnesses who a portion of the relief prayed for, he should stated that the natural flow of the water was have recovered a portion of the costs of away from the levee and that the levee did the court below, and having been forced to not affect the flow of the water in any way. prosecute this appeal to revise the judgment It was not error for the court to refuse to of the lower court against him for all of the inquire of the jurors, by means of affidavits costs incurred in that court, all the costs of or by summoning them before it after the the appeal should be adjudged against appelverdict, whether or not they correctly under-lant. The ground upon which appellee predstood the instructions, where there was noth-icates error in our holding above stated is ing in the instructions that could have mis- that the judgment in appellant's favor was led them as to the facts inquired about. contrary to the verdict of the jury, and the Hermann v. Schroeder, 175 S. W. 789; Far- rendition of such judgment being an error rand v. Ry. Co., 205 S. W. 848. apparent of record, this court should have set aside the judgment when the error was called to the attention of the court in the original motion for rehearing, and should now set it aside, notwithstanding the fact that no such objection was made to this judgment by appellee in his original brief, and the alleged conflict between the verdict and judgment was not called to the attention of the court until the motion for rehearing was presented.

[8, 9] By the Eighteenth and last assignment to be considered, appellant insists that the court erred in adjudging all the costs against him, in that he did recover a part of the relief prayed for, in that the court did require appellee to destroy the 25 yards of levee, constructed by him near appellant's tenant house since the passage of the act of 1915, and did enjoin him against reconstructing same.

238 S.W.-17