High court wants case over wetlands damage reconsidered

Steve Korris Oct. 25, 2011, 4:33am

AUSTIN – After Palestine surgeon Lee Roy Mathis died, the Supreme Court of Texas ruled that appellate judges in Tyler improperly rejected a jury verdict against him on a claim that a neighbor damaged wetlands on his 2-square-mile ranch.

On Oct. 21, the justices ruled that Mathis didn't conclusively prove that neighbor H. E. "Buster" Barnes committed nuisance and trespass.

"The jury refused to find that Barnes created a nuisance that damaged Mathis's land," they wrote in a per curiam opinion.

They remanded the dispute to 12th District judges in Tyler, so they can decide factual issues instead of the legal issues.

Mathis died on Aug. 7, at age 84. The University of Texas at Tyler opened a new classroom building in Palestine last year and named it Mathis Hall for him and pathologist Lucy Mathis, his wife. Their gifts to the Tyler campus exceeded $1.3 million, according to obituaries.

Mathis owned 1,254 acres in Anderson County, adjacent to Barnes's property.

According to the ruling, Mathis maintained a wetland complex on much of his land, which attracted beavers, waterfowl, and other wildlife, while Barnes's tract was used predominantly as a pasture. Lake Creek runs through both properties.

Barnes built an earthen road to his pasture in 2006, installing a pair of 28-inch culverts to accommodate the creek.

Water soon encroached on Mathis' property, and he asked Barnes to fix the problem, according to court records. Barnes then installed a third culvert.

"In December 2006, Mathis returned to his property after a 12-day absence to discover that Barnes's road was washed away," the justices wrote.

Mathis sued Barnes, claiming he damaged beaver dams, affected wildlife and made drainage necessary.

Mathis alleged negligence, gross negligence, nuisance and trespass.

At trial before Houston County 349th District Judge Pam Fletcher, Barnes argued that upstream events caused the flooding. He produced evidence that Mathis's property lost no value.

Jurors rejected all Mathis's claims, and Judge Fletcher entered take nothing judgment.

The 12th District appellate court affirmed Judge Fletcher on negligence and gross negligence, but reversed her on nuisance and trespass, finding insufficient evidence to support the verdict.

They found as matters of fact that Barnes built the road, the road disrupted the creek's natural flow and waters crossed the property line.

"Furthermore, the evidence is conclusive that Mathis had owned the property for approximately 40 years and used the land in question as a site on which to cultivate wetlands, which facilitated his further use of the land as a watering, nesting, and roosting place for waterfowl," 12th Court of Appeals Justice Sam Griffith wrote.

"Finally, the evidence is uncontroverted that, after the flood waters receded, the beaver dams that once occupied the property were no longer functional," he wrote.

Griffith wrote that Mathis conclusively established that the road caused the waters to enter upon Mathis's property.

"Damage or injury is presumed as a result of the trespass," he wrote.

Chief Appellate Justice James Worthen and Justice Brian Hoyle concurred.

However at the Texas Supreme Court, all nine justices rejected the appellate justices' reasoning.

"Barnes contends that the court of appeals erred by focusing on evidence that failed to persuade the jury. We agree," they wrote.

"Uncontested evidence may establish a fact as a matter of law, as when scientific proof yields only one conclusion, even if a jury disagrees," they wrote. "In this case, however, the jury was required to evaluate the cause of an otherwise natural occurrence.

"Barnes also posited that the destruction of the beaver dams might have been caused by wild hogs rooting around at their base," they wrote.

The justices noted that some of Mathis' land is in a swamp condition, and that the size of Mathis's marsh could increase by 20 or 25 acres with rain.

"[T]he area experienced some flooding even before Barnes built his road," they wrote.

They wrote that conflicting theories supported by evidence presented a classic case for a jury's resolution.

Still, they didn't restore the verdict.

Instead, the Supreme Court directed the appellate court to consider whether the jury's failure to find nuisance and trespass went against the great weight of the evidence.

Brent Howard of Tyler represented Barnes, along with Tynan Buthod and Elizabeth Lewis and Houston.

Susan Hays of Dallas represented Mathis.

Texas Supreme Court Case No. 10-0669

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