The Bexar Metropolitan Water District has appealed from a judgment for Otto Kuntscher in the sum of $1,500, for damages done to the Kuntscher home by reason of water which overflowed from the District's water storage tower. The tower is located on property near the Kuntscher home and is about one hundred feet high. On about fifteen occasions between September and December of 1952 it overflowed onto the Kuntscher home. Kuntscher complained to the District when the tower overflowed, and it would then dispatch a man to cut off the water and stop the flow
The plaintiff sued on the grounds that the District was a governmental agency which was liable under Article 1, Section 17, of the Constitution, Vernon's Ann.Civ. St., which provides that no person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made.
Our decision is controlled by Texas Highway Department v. Weber, 147 Tex. 628, 219 S.W.2d 70, 71, wherein the Supreme Court distinguishes suits grounded on the power of eminent domain and those grounded on tort, the government being liable for the former and not liable for the latter. This case, like the cited case, was one of negligence. The damage to the Kuntscher home was occasioned by the negligent manner in which the storage tank was maintained and used.
Texas Highway Department v. Weber states:
We could paraphrase those words by changing the names of parties and by appropriately changing the negligence with reference to fire to negligence with reference to water. See also, Angelle v. State, 212 La. 1069, 34 So.2d 321, 2 A.L.R. 2d 666, Note 2 A.L.R.2d 677, 699.
Texas Highway Department v. Weber prevents recovery for damages grounded on negligence, and the escape of stored waters, under Texas law, depends upon proof of negligence. Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221. Our understanding of the majority opinion in Bennett v. Brown County Water Imp. Dist. No. 1, Tex., 272 S.W.2d 498, is that such a water district is a governmental agency which enjoys nonliability for its torts.
Accordingly, the judgment is reversed and here rendered that plaintiff, the appellee herein, take nothing.