City of Waco v. Rook (55 S.W.2d 649, 1932)

ALEXANDER, J.

This action was brought by Urban Rook and others against the city of Waco to recover certain damages alleged to have accrued to them as the result of the building of Lake Waco. In 1929, the city of Waco erected what is known as the Lake Waco dam across the Bosque river near Waco in McLennan county for the purpose of providing a water supply for the city of Waco. It was alleged that the dam is about 60 feet in height, one mile in length, and backs the water up the river for a distance of more than five miles and thus impounded more than thirteen billion gallons of water. It is further alleged that plaintiffs’ farm is situated on the north side of the Bosque river in the valley thereof about 500 yards below said dam, and that much of plaintiffs’ land is more than 30 feet below the ordinary -water level in Lake Waco, that said dam is an earthen dam, and part of it was built on a gravel base, which base allows the water to continuously seep through and under the dam from the lake, and that the plaintiffs, some of whom reside on the farm, have a well-founded apprehension that said dam will break and flood plaintiffs’ land and damage the same, and that an ordinarily prudent person would have a like apprehension. Plaintiffs further allege that the city has constructed two broom gates and sixteen large floodgates about 15 feet high and 25 feet long in said dam for the purpose of providing a spillway for said lake, and has changed the natural channel of the river below sqid dam by constructing an artificial channel insufficient in size to carry the overflow water from said lake, which new channel enters the old channel near plaintiffs’ land, and, instead of running parallel to' plaintiffs’ land, as did the old channel, this artificial channel strikes plaintiffs’ land almost perpendicularly, and that, by reason of the diversion of the water into the new channel, a whirlpool has been created at the intersection of said channel with plaintiffs’ land, and the soil on several acres thereof has been completely washed away, and the remainder of said land is in constant danger of being overflowed and washed away. The plaintiffs further allege that, by reason of the manner of the construction -of said channel, 4 acres of plaintiffs' land has been washed away, to plaintiffs’ damage in the sum of $800; that 10' more acres will be washed away in the future'to plaintiffs’ damage in the sum of $2,000; that the value of plaintiffs’ entire tract of land (118 acres) has been depreciated $17,100; and that, by reason of the negligent manner in which the floodgates were operated in 1930, growing crops of the value of $200 and a fence