.




                    E           ORNEY             GENERAL
                              OF      YJEXAS
                             AUSTIN    1% Texas


                               February 7, 1961

    Honorable Jimmy Morris              Opinion No. NW-992
    County Attorney
    Navarro County                      Re:       Whether a County be liable
    Corsicana, Texas                              in damages occasioned b
                                                  overflow (or damages to7
                                                  lands not condemned for
                                                  flood control purposes, if
                                                  the county condemns certain
                                                  other lands in connection
                                                  with its flood control proj-
    Dear Mr. Morris:                              ect, and related questions.
         Your request for an opinion reads as follows:
              "Navarro County and The Navarro-Hill Soil
         Conservation District have entered into a flood
         control contract, and tax money is maintaining cer-
         tain dams in the district by authority of an elec-
         tion held in Navarro County under Art. 7048a,
         R. C. S.
              "The Conservation District and certain land
         owners feel that there is a need to condemn land
         In a particular area in order to construct a dam
         or make additions to a present existing dam. Their
         contention is that by so doing, certain lands will
         not be flooded. With one exception, all the land
         owners are willing to give their land (for conser-
         vation purposes). Therefore, with reference to the
         one exception, his land must be condemned or the
         project abandoned. We are satisfied that Navarro
         County has authority to condemn. Art. 1581e;
         16 T. J., Sec. 44, pg. 314.
              "Question No. 1: Should Navarro County pro-
         ceed with condemnation, in years thereafter could
         the county be held liable for overflow (or damages
         therefrom) to other lands not condemned?
              "Question No. 2: If question number 1 is
         answered in the affirmative, from what funds would
         the county be liable?
Hon. Jimmy Morris, page   2   NW-992)


          "Question No. 1:  If question number 1 is
     answered in~the affirmative, would the land owners
     have to prove negligence?
          "Question No. 4: If question number 1 is
     answered in the amrmative.   what effect. if an-v.
     would the question of liability have due-to the".
     Navarro County merely paying for all maintenance
     of the dams?
          "Question No. 5: As condemnation is brought
     in the name of the State of Texas (by authority of
     Art. 6674n), would the State also be liable?"
     We shall discuss your five questions in numerical order.
          "Question No. 1: Should Navarro County pro-
     ceed with condemnation, in years thereafter could
     the county be held liable for overflow (or damages
     therefrom) to other lands not condemned?"
     We cannot give you a categorical answer to this question
without some additional facts. We need to know whether the
"other lands," to which you refer, (a)o;elT;$ & CI~Y;~;F
the owners of the property condemned,
constitute the "remainder of the lands if the condemnee? We
shall discuss each alternative. (a) Should the lands belong
to others, the county would be subject to a suit for damages
caused by the overflow or backwater from the dam. You cite
several cases which are apropos. We shall give a synopsis of
the holdings.
     TARRANT COUNTY WATER CONTROL DISTRICT v. FOWLER, 175
S.W.2d b94. This is a tresoass to trs title case with an
alternative plea for damages, due to the backing of water
onto plaintiff's property. Covering plaintiff's property
with water was caused by the construction of Eagle Mountains'
Dam across the west fork of the Trinity River. The Court
held that this was a "taking" under Article 1, Section 17 of
the Constitution, entitling owner to compensation. The
governmental subdivision which constructed the dam, that is,
Tarrant County, was held liable.
     CITY OF AUSTIN v. HOWARD, 158 S.W.2d 556. The City of
Austin constructed a disposal plant. The suit was for damages
based upon a claim that the city had negligently constructed,
in one of the flood channels where the water was accustomed
to flow when the river overflowed, the obstruction which di-
verted the flood waters onto plaintiff's land. City contended
Hon. Jimmy Morris, Page 3 (Ww-992)


that a part of the damages was due to the construction of
Montopolis Bridge and approaches by the State Highway
Department. The city requested the submission of issues on
this phase of the case which were refused and on this ground
and certain other grounds the case was reversed and remanded,
However, the principle is approved that the creation of an
obstruction which diverts water onto another person's land
gives rise to a cause of action.
     HARRIS COUNTY v. GEHHAHT, 283 S.W. 139. This case is a
suit for damages against Harris Count..caused by the con-
struction and-impr&ement of a public-road causing water to
back up onto another person's property. The Court held that
liability existed regardless of negligence and predicated its
holding upon Article 1, Section 17 of the Constitution pro-
viding that:
          "No person's property shall be taken, damaged,
     or destroyed or applied to public use without ade-
     quate compensation."
     The flooding of land was held to be a "taking" within
the meaning of the Constitutional provision.
      (b) Should the "other lands" belong to the condemnee, he
should recover everything In the original condemnation suit,
that is, he should recover the market value of the dam site
(and whatever other land, if any, that is actually condemned)
and, in addition, the damages to his remaining land. State v.
            89 S.W.2d 194 (Comm.App.). The damages to the
=5%?
rema n er are determined by the difference in the market value
"before the taking" and the market value "after the taking."
To prove the market value "after the taking," anything can be
shown which might reasonably affect such value, as, for ln-
stance, the probability of overflow. These principles are
set forth in Article 3265, V.C.S., are discussed In the
Carpenter case, supra, and in many other cases.
      Claimed damages to the remainder must be asserted in the
condemnation suit. State v. Brewer, 169 S.W.2d 468 (Sup.ct.
1943 1. In this connection, however, it should be pointed
out that an easement for the entire lake and potential under-
water land could be taken along with the dam site in the ori-
ginal condemnation proceeding.
     Where part of a tract of land is condemned for street
purposes, the owner cannot recover in a subsequent proceeding
for damages to remainder which ought to have been~reasonably
Hon. Jimmy Morris, page 4 (WW-992)


foreseenand presented in the condemnation. City of Lagrange v.
Pieralt, 1'75Tex. 23, 175 S.W.2d 243.
          "Question No. 2: If question number 1 is
     answered in the affirmative, from what funds would
     the county be liable?"
     Navarro County could use Its permanent improvement and
flood control funds to pay on such judgments; however, the
County could not limit its liability to such funds as the
general fund would also be liable. White v. Calaway, 282
S.W. 642 (Civ.App. 1926, error ref.).
          "Question No. 3: If question number 1 is
     answered in the affirmative, would the land owners
     have to prove negligence?"
     Such llablllty is not predicated upon negligence but upon
a "taking" under Art. 1, Section 17 of the Texas Constitution.
Harris County v. Gerhart, 283 S.W. 139; city of Austin V.
Howard, 158 -Tarrant            County, etc. v. Fowler, 175
?LT-XZT694.
          "Question No. 4: If question number 1 is
     answered in the affirmative, what effect, if any,
     would the question of liability have due to the
     Navarro County merely paying for all maintenance
     of the dams?"
     This question seems to contradict Question No. 1, be-
cause No. 1 presupposes that Navarro County is the condemnor.
Doubtless your question means would the mere paying for main-
t;;;%ce render the County liable for damages? Our answer Is
   .
          "Question No. 5: As condemnation is brought
     in the name of th State of Texas (by authority of
     Art. 6674n), wouls the State also be liable?"
     Article 6674n is not applicable to the condemnation in
question but Article 1581e, V.C.S. gives counties the right
of condemnation for flood control purposes. No liability,
whatever, exists against the State of Texas.
                         S U M I3 A R Y

               Should   Navarro County condemn land
          and build a   dam, it would be liable in a
          damage suit   to owners of other lands for
          overflow or   backwater on said lands; such
Hon. Jimmy Morris, page 5 (W-992)


            damages as might accrue on the remainder
            of the land of condemnees should be cal-
            culated as a part of the damages in the
            condemnation suit.
                 The general fund would be liable.
                 Negligence need not be shown since
            liability arises under Art. 1, Sec. 17 of
            the Constitution by reason of the appro-
            priation or taking of the land.
                 The mere payment for maintenance does
            not render the County liable for damages.
                 In no event does any liability accrue
            against the State.
                                Yours very truly,
                               WILL WILSON
                               Attorney General of Texas


                                By:
                                      Assistant

WRS:jf
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman




REVIEWED FOR THE ATTORNEY GENERAL
BY:   Leonard Passmore
