Clark v. El Paso County Water Improvement District No. 1

WALTHALL, J. This suit was brought in the El Paso county court at law by Mrs. Myra Prater Clark, joined in the suit by her husband, Judge Leigh Clark, as plaintiffs, against defendant, El Paso county water improvement district No. 1. In their original and first-amended original petition plaintiffs seek to recover of defendant the sum of $1,000 as damages resulting from alleged negligent acts of defendant, and interest thereon from about the 1st day of March, 1924, the time when said damage is alleged to have occurred, in the flooding of plaintiff’s premises and house at San Eliz-ario, in El Paso county, through canals, ditches, and lateral ditches, parts of an irrigation system, alleged by plaintiffs to be owned by the defendant. Plaintiffs allege, in substance, that on or about March 1, 1924, defendant was the own* er of the irrigation system in El Paso county consisting of certain described canals, ditches, lateral ditches, and other appointments used by defendant irrigation district, for the distribution of water for the irrigation of the lands in said district; that defendant district was and is a public municipal conservation and reclamation corporation duly organized and acting as such under the Constitution and laws of this state; that as .the owner of said irrigation system the defendant, by and through its officers, entered into certain contracts with the United States through its proper officers for the purpose of improving and extending its said system of canals and ditches whereby the two, acting together, were to co-operate in the doing of said work, building up and creating said irrigation system and increasing the scope and water carrying capacity of the canals and ditches of said irrigation system, and to facilitate deliyery and distribution by the defendant through its said canals and ditches of water for irrigation to the lands in said district; that in the months of January and February, 1924, the defendant district and the United States, in co-operation, undertook to and did alter, widen, deepen, and raise the banks and remove check gates, and put in new check gates in said ditches, and especially those lateral ditches passing in front and to the west of plaintiffs’ house and premises at San Elizario; that in the doing of said work in the lateral ditches west of plaintiffs’ house and premises the intake gate and part of the conduit connecting therewith were negligently left jutting out to the middle of the ditch as widened and supported only by a small strip of earth underneath; that the United States and defendant were jointly and severally negligent in turning the water into said ditches for the first time after the widening, deepening, and raising the rim of the banks of said ditches without test, trial, and inspection, and the ■ constant, diligent watching of so great a volume and rapid flow of water into said ditches, and in permitting said flow of water to increase in volume until it reached the rim top of the banks of the ditches to the west of and in front of plaintiffs’ house, garage, and patio, and to such extent that by reason thereof plaintiffs’ house, and other parts of said properties connected therewith, were inundated and damaged $1,000. 'Defendant made general denial, and specially says that it is not true that defendant, either at the time alleged in plaintiffs’ petition, or at any other time, owned or operated, or had any part in .owning or operating, the ditches referred to in plaintiffs’ petition, or any other irrigating ditches in El Paso county; that it is not true, as alleged, that defendant ever widened, deepened, altered, or changed in any manner, or caused to be widened, deepened, altered, or changed in any manner any of the ditches described in plaintiffs’ petition; that said ditches are not owned, controlled, or operated by defendant, or under its authority, and have never been; and that, so far as defendant is advised and believes, the ditches are owned, controlled, and operated by the government of the United States of America, and by the Department of the Interior thereof. Evidence was heard and judgment was entered that plaintiffs take nothing by their *969 suit, to which plaintiffs excepted, and prosecute this appeal. In plaintiffs’ prayer the petition alleges: “Plaintiffs pray judgment as was originally prayed in their first original petition and herein by their first-amended original petition against the defendant, the El Paso county water improvement district No. 1, in the sum of $1,000 for their actual damages aforesaid, together with interest thereon at the legal rate, from the 1st day of March, A. D. 1924, to the date of trial and judgment herein, and plaintiffs pray for general relief and costs.” The Thirty-Fifth Legislature, 1917, by chapter 93, created the El Paso county court at law, and by section 2 of the act provided that said court shall have jurisdiction of all civil matters and causes originál and appellate over which, by the general laws of this state, the county court of said county would have jurisdiction, except as provided in said act, not necessary to here state. .Under the Constitution (article 5, § 16) and General Laws (Rev. St. 1925, art. 1950) of this state the county court has concurrent jurisdiction with the district court “when the matter in controversy shall exceed five hundred and not exceed one thousand dollars, exclusive of interest.” Our statute does not expressly provide for the recovery of interest in matters of tort. In such cases it is allowed not' eo nomine, that is, not as interest, but merely as damages; that is, the rate of interest is resorted to in order to .measure the damages accruing from the loss of the use of the money. McDaniel v. National Steam Laundry Co., 112 Tex. 54, 244 S. W. 135, in which Judge Powell of the Commission of Appeals, section B, discusses the subject of jurisdiction of the county court and refers to many cases on the several features. Interest recoverable as damages arising from a breach of contract or tort is considered in ascertaining jurisdiction. Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163; McDaniel v. Nat. Steam Laundry Co., supra. From what has been said it is readily seen that the trial court was without jurisdiction. It follows that this court is likewise without jurisdiction. The case is remanded to the trial court, with direction that the case be dismissed.