
    WILSON v. HAGINS et al.
    (No. 4275.)
    Supreme Court of Texas.
    June 4, 1927.
    1. Appeal and error <@=>1010(1) — Jury’s findings supported by evidence that defendants diverted no flood waters to plaintiff’s land, held conclusive.
    Jury’s findings, supported by pleadings and evidence, that defendants did not divert flood waters nor cause them to flow on plaintiff’s land, held conclusive, in action for damages by, and injunction against, maintenance of embankment and ditch on defendants’ land.
    2. Trial <@=>352(1) — In suit for injunction and., damages, jury should be directed to find whether like damages would occur in future.
    In suit for injunction against, as well as damages by, maintenance of embankment and ditch diverting flood waters from defendants’ to plaintiff’s land, jury should be directed to find whether like damage would occur in future from waters so diverted.
    3. Appeal and error <@=>1068(4) — Charge not to estimate damages, if unable to determine portion caused by defendants’ embankment, held harmless, where jury found that no water was diverted thereby.
    Special charge not to estimate damages on surmise or speculation, if jury were unable to determine what portion of damage to plaintiff’s land by flood waters was proximately caused by ditch and embankment on defendants’ land, held harmless to plaintiff, where jury found that no water was diverted onto plaintiff’s premises by such embankment and ditch.
    4. Waters and water courses <@=>171 (3)— Charge not to estimate damage by flood waters, if unable to determine portion caused by embankment on defendants’ land, held erroneous.
    Charge not to estimate, on surmise or speculation, damage to plaintiff’s land by flood waters, if jury were unable to determine what portion was proximately -caused by ditch and 'embankment on defendants’ land, held erroneous; proper instructions being to award only damages caused by water diverted thereby, if jury found that any was so diverted.
    5. Waters and water .courses <@=>171 (3)— Mandatory injunction against defendant not answering to destroy embankment constructed on bis land by codefendant held erroneous.
    Failure of landowner, consenting to, and paying part of cost of, adjacent owner’s construction ’of ditch and embankment over their lands, in consideration of latter’s agreement to hold him harmless from all damages, to answer suit against them for damages and injunction because of diversion of flood waters to plaintiff’s land, held not to entitle latter to mandatory injunction against consenting owner to destroy part of embankment on his. land; adjacent owner having such interest therein as to entitle him to resist its destruction and defend suit.
    6. New trial <@=>144 — Refusal of rehearing for jury’s misconduct held not error, in view of juror’s testimony contradicting his affidavit and evidence that he said nothing material or harmful.
    Refusal of rehearing for misconduct of jury held not error, where juror, in his testimony before court, clearly contradicted statements in his affidavit, and his and other jurors’ testimony showed clearly that juror charged with misconduct said nothing material to issues or harmful to appellants.
    7. Appeal and error <@=>1094(5) — Supreme Court must respect appellate court’s jurisdiction to remand cause for new trial, though ■ holdings on probative value of facts were erroneous.
    Supreme Court must respect jurisdiction of Court of (jivil Appeals to reverse judgment of district court and remand cause for new trial on facts, though its holdings on legal or probative value thereof were clearly erroneous.
    Error to Court- of Civil Appeals of Seventh Supreme Judicial District.
    Action by A. J. Hagins and another against W. T. Wilson and another. A judgment for defendants was reversed and the case remanded by the Court of Civil Appeals (262 S. W. 770), and named defendant brings error.
    Cause remanded to the district court for a new trial.
    W. D. Wilson, of Spur, and Underwood, Jackson & Johnson, of Amarillo, for plaintiff in error.
    B. G. Worswick, of Dickens, and Stinson, Coombes & Brooks, of Abilene, for defendants in error.
   PIERSON, J.

Defendants in error, A. J., and B. J. Hagins, instituted this suit against W. T. Wilson, plaintiff in error, and Walter Carlisle, alleging that there is a stream traversing the several tracts of land owned by the parties to this suit. They alleged that plaintiff in error Wilson had erected an embankment and ditch on the lands owned by himself and by Carlisle, and that said embankment and ditch diverted flood waters flowing through Duck creek and a slough coming out of said creek from their natural course and onto the lands of the defendants in error, to their damage. They prayed for damages, and for an injunction restraining plaintiff in error and Walter Carlisle from maintaining the embankment and ditch, and for a mandatory injunction commanding them .to take down said embankment and to fill up said ditch..

Plaintiff in error, W. T. Wilson, denied that there is any slough coming out of Duck creek, as alleged by defendants in error, or that there was any natural flow of water through such a slough, and -denied that any flood waters had been diverted by said embankment or ditch onto the land of defendants in error Hagins, or that their land was damaged as a result of water diverted onto their land by him.

As stated in the dissenting opinion of Associate Justice Boyce:

“The ditch and embankment were constructed in part over‘Carlisle’s land and in part over Wilson’s land. The work was done by Wilson with Carlisle’s consent, under a contract by which Carlisle paid Wilson $150 in part payment of the cost of the work and in consideration also of Wilson’s agreement to hold Car-lisle harmless from all damages that might be recovered against Carlisle on account of its construction and maintenance.”

The theory of the defense, as pleaded and proven' by plaintiff in error,' Wilson, as stated in the dissenting opinion of Associate Justice Boyce, “was to the effect that the channel of Duck creek where it ran through Car-lisle’s land and in the big bend became clogged, causing the overflow of its banks above that point, resulting in the overflow both of Wilson’s land and of defendant’s land below this point; that the ditch and embankment put back into the channel of Duck creek the water that would .otherwise have remained in the channel but for the clogged condition of the channel referred to; that the channel of Duck creek was sufficient to carry off the water after it had been turned back into its regular channel, and that the overflow on plaintiff’s land was of water that overflowed the east bank of Duck creek a considerable distance above and north of the point where Wilson’s ditch ran into the channel, and that the ditch had nothing to do with the overflow of plaintiff’s land.”

Upon special issues submitted to it, the jury found as follows as set out in the majority opinion of the Court of Civil Appeals by Chief Justice Hall:

“ ‘(1) The defendants did nat divert the flood waters of Duck creek and cause them to flow' onto and over the lands of the plaintiff A. J. Hagins.
“ ‘(2) Defendants did not divert the waters of Duck creek, causing them to flow onto and over the lands of plaintiff B. J. Hagins.’
“The third and fourth issues, as follows, were answered in the negative:
“ ‘ (3) If you find that the defendants did divert the flood waters of Duck creek and thereby caused them to flow onto and over the lands of plaintiff A. J. Hagins was plaintiff A, J. Hagins’ land damaged thereby?
“ ‘(4) If you find that the defendants did divert the flood waters of Duck creek, thereby causing them to flow onto and over the land of plaintiff B. J. Hagins was plaintiff B. J. Hagins’ land damaged thereby?’
“By issues Nos. 5 and 6 the jury were requested to find to what extent the lands of A. J. and B. J. Hagins were damaged, to both of which issues the jury answer ‘None.’ ”

In accordance with the findings of the jury, the honorable district court entered judgment that W. T.'Wilson and Walter Carlisle did not, by means of the embankment, levees, and ditch, divert, or cause to be diverted, the flood waters of any slough or of Duck creek onto the lands of A. J.' and B. J. Ha-gins, or either of them, and that their lands were not damaged by the acts of Wilson and Carlisle, and that they were not entitled to the injunction prayed for, and entered judgment accordingly in favor of Wilson and Car-lisle.

In a very voluminous opinion the majority of the honorable Court of Civil Appeals reversed and remanded the case for a new trial. A dissenting opinion was filed by Associate Justice Boyce, in which he held that the judgment of the district court should be affirmed on the answers of the jury to the first and second issues.

The holding of Judge Boyce that the answers of the jury to questions Nos. 1 and 2, that plaintiff in error, Wilson, and Walter Carlisle did not divert flood waters, or cause them to flow onto the lands of defendants in error, was conclusive of the case, is clearly correct.

The honorable Court of Civil Appeals in the majority opinion held that the facts conclusively showed that the building of the embankment and ditch necessarily must have diverted, and did divert, water and throw it upon the land of defendants in error. The holding is that the facts are -conclusively in favor of defendants in error, and that under the application of “natural laws” and “physical facts” there was no evidence upon which the jury could answer questions Nos. 1 and 2 in favor of plaintiff in error, Wilson. One cannot read the elaborate majority opinion without being convinced that such is the view of the majority of the honorablé Court of Civil Appeals in this case, and is in accord with the insistence of the defendants in error Hagins that a peremptory instruction in their favor should have been given by the trial court. This, we think, as a matter of law was erroneous. Both the pleadings and the evidence amply raised and supported the issues presented in said special issues Nos. 1 and 2 to the jury. Plaintiff in error’s defense was a valid and effective one, going to the very heart of the case, and it was both pleaded and proven, and the jury found the facts to be that the embankment and ditch erected by plaintiff in error, Wilson, diverted no water onto the lands of defendants in error, and that no water went onto the land of defendants in error other than that which would have gone there anyway and regardless of said embankment and ditch; and, further, that defendants in error suffered no damage from any water that was diverted onto their land by plaintiff in error. Reference is made to the majority opinion of the honorable Court of Civil Appeals, 262 S. W. 770, and also to the dissenting opinion of Associate Justice Boyce, 262 S. W. 782.

The majority of the court held that it was error for the trial court in framing special issues in this case to confine them to a finding whether the lands had been injured, and in not so framing the issues to permit the jury to find whether the lands would be injured and damaged in the future by such diversion of water. Inasmuch as this was in part a suit for an injunction, on another trial if the jury should find that the embankment and ditch did divert flood waters onto the lands of defendants in error to their injury, they should be directed to find also whether or not like damage would occur in the future from waters so diverted.

Another ground upon which the honorable Court of Civil Appeals reversed the cause was the giving by the trial court of special charge No. 4 offered by plaintiff in error Wilson. Same is sufficiently set out in the objections of defendants in error Hagins in the district court, as follows:

“Plaintiffs except to- said special charge, wherein the jury are instructed, in effect, that if the ditch and embankment caused additional waters to overflow the lands of plaintiff, and that the lands would have been inundated and damaged anyway, and the jury were unable to determine what portion of the damage, if any, was proximately caused by the presence of the condition of the ditch, embankment and levee, they should not undertake to estimate any damage, in answer to issues Nos. 5 and 6, upon surmise or speculation, and for such exception say that said special charge is not the law of the case, and is on the weight of the evidence.
“Plaintiffs, further excepting to said special charge, say that the same is erroneous, in that it instructs the jury not to estimate damages, based upon surmise and speculation, as this would have a tendency to prejudice the rights of the plaintiffs before the jury with respect to said issues 5 and 6, * * * and does not limit the consideration of said instructions to issues 5 and 6, and might be considered by the jury,- in answering issues 3 and 4 embodied in the court’s general charge.”

Even if said special charge No. 4 was erroneous, it was rendered harmless by the finding of the jury that there was no water diverted onto the premises of defendants in error by the embankment and ditch erected by plaintiff in error, Wilson, and was no ground for reversal of the judgment in favor of plaintiff in error. However, said special charge was subject to the objections made, and was erroneous, and should not have been given. In its stead, on another trial of the case the trial court should so frame his instructions as to limit the recovery to the damages caused by such water only as was diverted onto the land of defendants in error by the embankment and ditch constructed by plaintiff in error, Wilson, if the jury should find that any water was diverted by said embankment and ditch onto the lands of defendants in error.

The honorable Court of Civil Appeals in the majority opinion held that Walter Car-lisle having filed no answer in the case, a mandatory injunction should have been issued against him for the destruction of that part of the embankment on his land, regardless of the defense of plaintiff in error, Wilson, and of the findings of the jury in his favor. We agree fully with the holding of the dissenting opinion in that respect, wherein Judge Boyce says:

“The ditch and embankment were constructed in part over Carlisle’s land and in part over Wilson’s land. The work was done by Wilson with Carlisle’s consent, under a contract by which Carlisle paid Wilson $150 in part payment of the cost of the work and in consideration also of Wilson’s agreement to hold Car-lisle harmless from all damages that might be recovered against Carlisle on account of its construction and maintenance. The ditch and embankment could not be separated into parts and serve the purpose for which it was constructed; the destruction of that part on Car-lisle’s land would render that part on Wilson’s land useless. Under the circumstances under which it was constructed, Wilson, in my opinion, had a license or easement as against Car-lisle’s land in the matter of its maintenance. Harrison v. Boring, 44 Tex. 255, 267; Risien v. Brown, 73 Tex. 135, 10 S. W. 661. Car-lisle could not himself, without Wilson’s consent, have lawfully destroyed that part of the ditch and embankment that was on his own land, nor could he voluntarily have conferred that right on any one else. Wilson, in my opinion, had such an interest in that part of the ditch that was on Carlisle’s land that he had a right to resist its destruction by Car-lisle or any third person, and so to defend this suit. Carlisle’s failure to answer cannot in reason deprive Wilson of this right.”

Also, the honorable Court of Civil Appeals in the majority opinion reversed the case upon the ground of alleged misconduct of the jury. After having carefully read the record on the matter, we think the dissenting opinion of Associate Justice Boyce is correct in that matter also, and that there was no error in the trial court’s refusing a rehearing on account thereof. In testifying before the court the juror Aston clearly contradicted the statements in his affidavit, and the testimony of him and the other jurors showed clearly that the juror G-ragson had said nothing which had material bearing upon the facts to be found by the jury, and certainly nothing that was harmful, to defendants in error. However, as the case is to be remanded for a new trial, this issue becomes immaterial.

Taking the case as a whole, we think the dissenting opinion of Associate Justice Boyce was in all things correct. However, the Court of Civil Appeals having reversed the judgment of the district court and remanded the cause for a new trial on the facts of the case, we must respect its jurisdiction to do so, even though its holdings on the legal or probative value of the facts were clearly erroneous. See Tweed v. W. U. Telegraph Co., 107 Tex. 253, 166 S. W. 696, 177 S. W. 957, and cases therein cited and discussed, for a clear enunciation of the law on the jurisdiction of this court and of the Court of Civil Appeals over issues of fact.

Therefore the cause is remanded to the district court for new trial under the rules of law not inconsistent with this opinion. 
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