I am of the opinion that the judgment should be affirmed on the answer of the jury to the first and second issues. The appellee Wilson's theory of the cause was to the effect that the channel of Duck creek where it ran through Carlisle's land and in the big bend became clogged, causing the overflow of its banks above that point, resulting in the overflow both of Wilson's land and of defendant's land below this point; that the ditch and embankment put back into the channel of Duck creek the water that would otherwise have remained in the channel but for the clogged condition of the channel referred to; that the channel of Duck creek was sufficient to carry off the water after it had been turned back into its regular channel, and that the overflow on plaintiff's land was of water that overflowed the east bank of Duck creek a considerable distance above and north or the point where Wilson's ditch ran into the channel, and that the ditch had nothing to do with the overflow of plaintiff's land. The evidence on this issue was conflicting, but the defendant Wilson, the witness Marshall, and perhaps others, gave positive evidence in support thereof. The jury decided the conflict in appellee's favor, and the verdict, being sufficiently supported by the evidence, should not, in my opinion, be disturbed. Even if it is true that Wilson violated the provisions of section 53, c. 44, of the Acts of the Thirty-Fifth Legislature, Fourth Called Session, being article 55841/2r REV. CIV. STAT., Vernon's Texas Civil Statutes, 1922 Supplement, in constructing the ditch and embankment, yet if it did not in any manner affect plaintiff's land they would have no right to enjoin its maintenance. The filing of such a suit would be the prerogative of the state, proceeding in pursuance to the provisions of the law referred to.
The finding of the jury on the two issues above mentioned is sufficient to dispose of the case, and any errors committed in the submission of the issue of damages would be harmless, and would not, in my opinion, re quire a reversal of the judgment.
The ditch and embankment were constructed in part over Carlisle's land and in part over Wilson's land. The work was done by Wilson with Carlisle's consent, under a contract by which Carlisle paid Wilson $150 in part payment of the cost of the work and in consideration also of Wilson's agreement to hold Carlisle harmless from all damages that might be recovered against Carlisle on account of its construction and maintenance. The ditch and embankment could not be separated into parts and serve the purpose for which it was constructed; the destruction of that part of Carlisle's land would render that part on Wilson's land useless. Under the circumstances under which it was constructed, Wilson, in my opinion, had a license or easement as against Carlisle's land in the matter of its maintenance. Harrison v. Boring, 44 Tex. 255, 267; Risien v. Brown, 73 Tex. 135, 10 S.W. 661. Carlisle could not himself, without Wilson's consent, have lawfully destroyed that part of the ditch and embankment that was on his own land, nor could he voluntarily have conferred that right on any one else. Wilson, in my opinion, had such an interest in that part of the ditch that was on Carlisle's land that he had a right to resist its destruction by Carlisle or any third person, and so to defend this suit. Carlisle's failure to answer cannot in reason deprive Wilson of this right.
The statement by appellee's attorney made before the jury in discussing the testimony of the defendant Carlisle "that he (Carlisle) was made defendant, when he ought to have been made a plaintiff — he has filed no answer in this case and is in cahoots with plaintiffs," was, in my opinion, within the range of legitimate argument. It is true that Carlisle, though a defendant, filed no answer. He was protected by Wilson's agreement of indemnity. He was called as a witness for the plaintiffs, and his testimony was favorable to them. There is a note of complaint against the defendant Wilson and criticism of Wilson's action in constructing the ditch and embankment throughout his testimony. In discussing this testimony the attorney had the right to call attention to these facts, *Page 783 comment thereon, and convince the jury, if he could, that Carlisle's real attitude was one of sympathy for the plaintiffs and hostility to his codefendant, all of which might be considered by the jury in determining the weight to be given the testimony. The attorney has a wide range in the matter of the form of presenting his comments on the evidence; I do not think he was in this instance without this range.
I am of the opinion that the alleged misconduct of the jury does not require a reversal of the case. The court heard evidence on the issue. The juror Aston's evidence, given in this hearing, as to what transpired in the jury room, is materially different from the statement in his affidavit. It appears from his testimony and that of a number of other jurors that some discussion arose during the deliberations of the jury as to Carlisle's testimony. The particular part was, in substance, that when the creek got up it overflowed the ditch and had sandbarred some of his land and some of Wilson's land, evidently on the upstream side of the ditch and embankment. This testimony was favorable to plaintiffs in that it tended to show that the ditch and embankment were turning back into Duck creek a large amount of water that would otherwise have gone down over Wilson's land to the south and west of the ditch. At this Juncture the juror Gragson said that he had seen the water running as Carlisle had testified, and believed Carlisle was telling the truth about it. The tendency of this unauthorized statement was thus favorable to the plaintiffs. The court, having heard the evidence, was amply warranted, I think, in finding that the statement of the juror was not in any manner prejudicial to the plaintiffs rights. It was within the "discretion of the trial court" to grant a new trial "if the misconduct of the jury proven be material." R.S. art. 2021. I am not willing to agree that the court abused his discretion in this instance.
For these reasons I respectfully dissent.