(concurring).
I concur in the opinion of Mr. Justice Walker, but in my opinion there are other grounds which support the judgment of reversal. I shall mention one.
This is an unusual case on the facts. The construction of the highway which respondents say was the action which ultimately resulted in damage took place some time prior to the City’s 1949 annexation of the territory involved. In 1960, some eleven years after such annexation, respondents placed movable personal property in the area. Special Issues Nos. 23 and 24, and the jury’s answers thereto, were as follows:
“23. Do you find from a preponderance of the evidence that the failure of the plaintiffs (respondents) to ascertain the drainage characteristics of the property in question was negligence?
“Answer ‘We do.’
“24. Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the damages, if any, sustained by the plaintiffs ?
“Answer ‘We do.’”
The respondents’ neglect contributed to the loss sustained by them. An individual defendant, not having the power of eminent domain, would not be liable. I do not think Article 1, § 17, of the Texas Constitution affects the situation. When personal property is negligently placed upon land subject to flooding, the owner of such property should not be allowed to recover against a defendant because of the circumstance that the defendant is vested with the power of eminent domain.