On Second Motion for Rehearing. Appellee in a second motion for rehearing, which was filed with permission of the court, very earnestly insists that we erred in our original opinion herein in holding that, because appellant recovered a judgment in the lower court awarding him a portion of the relief prayed for, he should have recovered a portion of the costs of the court below, and having been forced to prosecute this appeal to revise the judgment of the lower court against him for all of the costs incurred in that court, all the costs of the appeal should be adjudged against appellant. The ground upon which appellee predicates error in our holding above stated is that the judgment in appellant's favor was contrary to the verdict of the jury, and the rendition of such judgment being an error apparent of record, this court should have set aside the judgment when the error was called to the attention of the court in the original motion for rehearing, and should now set it aside, notwithstanding the fact that no such objection was made to this judgment by appellee in his original brief, and the alleged conflict between the verdict and judgment was not called to the attention of the court until the motion for rehearing was presented. *Page 258
There is no question of the soundness of the legal proposition that, if the judgment is contrary to the verdict, the error in rendering such judgment is fundamental and apparent of record, and the judgment should be set aside at any stage of the proceedings on appeal when the attention of the court is called to the error. But the majority of the court cannot agree with the appellee in the contention that the judgment in favor of appellant, requiring the appellee to remove the 25 yards of embankment or levee placed by him on and near the western end of the line between the lands of appellant and appellee, is contrary to the verdict of the jury.
As shown in our original opinion, appellant's petition first complains of the erection by defendant, during the year 1911, of a levee on the common boundary line between the land of appellant and appellee for a distance of 700 to 1,000 yards, which it is alleged obstructed the natural flow of the surface water and impounded it on appellant's land and damaged appellant in the sum of $2,000. He further pleaded that in the year 1918 appellee erected in front of and below a tenant house of appellant a levee of about 25 yards, which was an extension of the original levee and which obstructed and impounded the surface water in front of and under appellant's tenant house "to such an extent as to render the tenant house almost uninhabitable, to the great inconvenience and damage of appellant." The evidence shows that the first levee complained of in the petition was along the boundary line between the land of appellant and appellee and was erected by appellee by plowing several furrows along a fence on the boundary line and throwing the dirt from the furrows against the fence. This line did not extend beyond appellant's tenant house, which was situated at or near the western end of appellant's land. The 25 yards' extension of this levee ran in front of and beyond the tenant house. It left the line between the lands of appellant and appellee and ran at an angle from said line and was entirely on the land of appellee. It was constructed by digging a ditch and throwing the dirt on the sides of the ditch. There is ample evidence to sustain the finding that this 25-yard levee did obstruct the flow of the water and impound it under appellant's tenant house as alleged in the petition, and there is also evidence tending to show that the long levee on the boundary line obstructed the flow of surface water and impounded it on appellant's land. Appellee denied that either of these levees obstructed the natural flow of the water or caused it to become impounded on appellant's land, and the evidence offered by him was sufficient to sustain his denial of any damage to plaintiff by reason of the construction of either the original levee or the 25-yard extension.
In this state of the pleading and evidence, the trial court, among others, submitted the following special issue to the jury:
"Does the levee that was thrown up by the defendant between his land and that of plaintiff divert the natural flow of surface water over the land of plaintiff and impound water on plaintiff's land?"
To which question the jury answered, "No."
No other issue in regard to the effect of the levees constructed by appellant was submitted.
Upon the return of the verdict the court rendered a judgment denying appellant any relief as to the long levee along the boundary line, but granting the prayer for injunction against the maintenance by appellee of the 25-yard extension and ordered its removal.
No objection was made in the lower court by the appellee to this judgment, and in his briefs and argument on the original hearing in this court no contention is made that the judgment enjoining the maintenance of the 25-yard levee is contrary to the verdict. On the contrary, in reply to appellant's contention under his eighth and ninth assignments of error, which complain of the refusal of the trial court to submit the issue of the damage caused by the construction and maintenance of the 25-yard extension of the original levee, appellee presents in his brief the following counter proposition:
"Appellee admitted in his pleadings that in the fall of 1918 he extended the so-called levee at its western end about 24 yards, and in his testimony admitted that he extended it 20 or 25 yards. There was therefor no issue to be submitted to the jury on that phase of the case. The court decided this in favor of appellant, requiring the jury to only find the length of such extension, which the jury found to be 25 yards, and the court ordered same removed. Therefore there is no merit in these two assignments."
We think the charge above quoted and the finding of the jury, when read in the light of all the facts above stated, can only be construed as a finding in regard to the original levee and to in no way conflict with the finding of the court in regard to the 25-yard extension. This was the construction placed upon the verdict by the court and both the parties in the lower court, and in this court until after our decision was rendered.
We prefer to follow this interpretation of the verdict rather than adopt the belated discovery of appellee's counsel that there is a conflict between the verdict and the judgment.
We think the motion for rehearing should be overruled, and it has been so ordered. Justice LANE dissents from this conclusion and will give his reason for his dissent.
Overruled. *Page 259