City of Ft. Worth v. Burgess
City of Ft. Worth v. Burgess
Opinion of the Court
John I. Burgess recovered a judgment against the city of Ft. Worth for damages to a tract of land resulting from the construction of a reservoir, from which the defendant has appealed.
In order to impound water for the use of the city, a dam was placed across Trinity river. The water thus impounded backed up the channel of the stream and impeded the escape of water accumulating from rains in Ash creek, which flowed into the river. This obstruction of the flow of water down Ash creek caused the bed of the creek to fill up to a large extent with débris, and the result of which, together with the increased accumulation of water and débris in the river, caused the plaintiff’s land situated near Ash creek to overflow after rains to a greater extent than it had done prior to the construction of said dam, and to such an extent that the land so overflowed could not be cultivated.
The tract of land owned by plaintiff consisted of 478 acres, only 232 acres of which was overflowed. Plaintiff alleged in his petition that before the dam was constructed the tract of 478 acres was reasonably worth $65 per acre as a whole, and that by reason of the construction of the dam it had been damaged in the sum of $35 per acre, or an aggregate sum of $16,720, which was the amount awarded by the jury.
“I don’t think the land could be sold at all at this time at anything like a reasonable price; I cannot say it has anything like a reasonable market value.”
The evidence shows that the 232 acres of land which overflowed was bottom land lying along Ash-creek, and prior to the construction of the dam had been in cultivation, but that after the construction of the dam plaintiff was compelled to abandon the cultivation of it by reason of the overflows from rains which destroyed the crops planted thereon. The evidence further showed that the balance of the 478 acres was land fit only for pasturage purposes. Plaintiff further testified as follows:
“I testified a while ago that my land at this time, that is, the time before this dam was built, was worth $60 to $65 per acre. Of course, after the dam was built it has some value, but it would be hard to dispose of it at anything like a reasonable value. I don’t know whether I could find a purchaser at all or not, that is, if a man wanted a farm, but if he wanted just a little place to live on and have a few stock on it, it might be all right, but to a man who want *864 ed to farm and make money I don’t believe I could dispose of it to a good farmer.”
B. D. Burgess, another witness, testified with reference to the 232 acres that was overflowed as follows:
“For agricultural purposes land of that kind is absolutely worthless.”
S. L. McNay testified that he was acquainted with the market value of the land before the construction of the reservoir, and that the reasonable market value of the whole tract of 478 acres, taken as a whole, was at that time $65 per acre. He further testified that the 232 acres of valley land which was overflowed was worth $75 per acre, valued separately from the remainder of the tract. Plaintiff further testified that the offiy way he could make a profit out of the tract described in his petition would be to cultivate the bottom land. There was other testimony showing that after the construction of the dam some two or three crops planted upon the bottom land had been destroyed by overflows, and that by reason thereof plaintiff had been compelled to abandon the cultivation of the bottom land altogether. The testimony of the different witnesses relative to the value of the land before and after the construction of the dam clearly showed that they referred to dates immediately before and immediately after such construction. Appellant urged no objection to such testimony upon the ground that such was not their meaning. In the absence of any evidence to the contrary, there is no merit in the contention that there was not sufficient proof upon those issues to sustain the verdict.
Appellant insists that, as there was no evidence to show that the pasture land, considered separately from the bottom land, had been depreciated in value, there was error in the charge in allowing a recovery for injuries to the whole tract, and that the verdict of the jury upon that basis was erroneous for the same reason.
For the reasons indicated, all of appellant’s assignments of error are overruled, and the judgment is affirmed.
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Reference
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- City of Ft. Worth v. Burgess.
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