The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-06-06
JUDICIAL BEHESTS.
Abstract of Cases Decided by the
Supreme Court.

Supreme Court.
The supreme court decided the follow
ing cases Friday:
H. Gross Va. City of Lampasas, ap-
pealed from Lampasas county; rev ersed
and remsuded. Opinion by Associate
Justice Henry.
Thomas Roche We. j. g. Lowell, from
Tarrsnt couuty; reversed and remanded.
Opinion by Associate Justice Henry.
TOrrey Davidson and Gfoscup VS.. Will
liam Cameron d Co., from Taylor county (;
affirmed subject to remittur of costs by
defendant. Opir ion by Associate Justice
Gaines.
The Gross case is an action to recover
damages of the city of Lampasas for al
legged injuries to his Homestead premises,
resulting from the overflow of surface
water into this plaintiffs lot, caused by the
grading and craining done By the city,
precipitatiug large quantities of water
upon the premises without outlet for its
escape. Also on scoount of the city dig
ging broad and deep ditch between the
street and the sideRalk of the premises,
cutting off convenient access to and from
the CITY, injuring the beauty of the prem
ises and endangering the lives
of the family. And ON other
minor accounts of complaint.
The city pleaded general denial and
specially averred that it's action was req
soneble and proper and lawful, as defend
ant had right to use the street for such
purposes; and further, that plaintiff had
full warrant from defendant to make
walks across or cover the entire ditch, and
that the ditch was necessary on account
of the unhealthy and dangerous condition
of plaintiffs premises; and denying that
plaintiffs premises were damaged, bat
claiming on the contrary they were en-
HANGED IN value and improved as to their
health and comfort.
There ia a special plea also that defend
ant had by prescription acquired an
| easement to have the waters thus diverted
through certain we'll defined natural
channel, running through said premises,
on account of the rugged nature of the
ground, affording no otner outlet; and
that plaintiffs premises, as an inferior
heritage, owed the light of such drainage
as a natural duty or servitude to the city's
superior estate; that in fine the action of
the city was necessary to abate public
nuisance.
The plaintiff complained that the ditch
was not skillfully made so as to carry off
| the water, as designed, from his premises;
and, on the other hand, defendant COM
planned that a wall, made by plaintiff,
blocked the water into pond so as to OBJ
struct drainage.
The Judgment rendered was that neither
party should recover the relief sought
against the other, and that plaintiff pay
all costs of suit. Plaintiff, on appeal,
complains the court erred in giving judg-
ment for appellant because it appears,
from the judges conclusions of facts,
that plaintiff sustained injury
from the act of defendant,
and because, if the ditch was justified by
the facts, the defendant should still have
been held liable in damages for the de-
fective and unskillful manner in which
the work was done.
The court below concluded that the
ditch was necessary in consequence of
plaintiffs wall creating stagnant pond,
and that, while plaintiffs property with
out the wall would be damaged, yet with
the wall it is not damaged by the ditch.
Held: Plaintiff, under the fac of the
case, enjoyed,the right.to build the wall
upon his own land and prevent its over
flow by thes surface water. Lessard
VS.. Straun,' 81 American Reports,
page IT'S. Having this right, Ilain-
| tiff stood with regard to the nuisance
created by the surface water after it had
been obstructed by the wall, as did other
people affected by il; and just as he would
have stood if not previously connected
with it in any way.
rinh Of thn nil tn
construct the ditch along the street is
given by the law and existed without any
regard to plaintiffs action, but it was the
duty of the city to construct it with at
least ordinary skill, so as to
injure plaintiff and his property as
little as could be done consistently with
the city's right to make the Improvement.
There being nothing in the record to show
that the ditch may not be so constructed
as not to injure the value of plaintiffs
property and to protect persons, crossing
it from all danger, it is further held that
if the ditch, as constructed, Is subject to
these changes and no facts exist to excuse
defendant from the obligation to construct
| it with sufficient skill to cause such wrongs,
plain tiff ought to have judgment for such
damages as proximately result to him
from them. Judgment is reversed and the
cause remanded.
| The Roche case is land controversy, in
which Roche pleaded not guilty, and i'm
provement in good faith in an action OF
trespass to try title brought against him
by Ii veil. Mary E. Dumas, claiming to be
surviving widow and in community of
James 2. Dumas, conveyed the land to
Scott i. Dumas and he to John @. Lowell.
No proof was made of the date or fact
that she married James p. Dumas.
There was verdict for plaintiff and that
he pay $40 for value of improvements in
excess of the use of the land and locate
the line between plaintiff and defendant
as set forth in the verdict defining the
bounds.
Held: A necessary link in the plain
1 tiff's chain of title was evidence that Mary
E. Dumas was the wife of James E. Dumas
at the date of his acquisition OF title to
the land; and that neither the recitals In
the court proceedings when she qualified
as survivor in community, or in her deed
to her vendee, are evidence of that fact.
Further held: The description of the
land, or rather the want of any descIip'
tion In the verdict, did not authorize
recovery of the particular tract descrlb ed
in the judgment or in the petition.
For these and other reas ons the Iudg'
mert is reversed and the cause re-
manded.