NO. 95-63
(filed Feb. 8, 1995)

WILLIAM E. JONES                                                                             IN THE DISTRICT COURT OF

VS.                                                                                                          VAN ZANDT COUNTY, TEXAS

UDO BIRNBAUM                                                                                  294TH JUDICIAL DISTRICT

        Comes now, William B. Jones, Plaintiff, hereinafter referred to as "Jones", complaining of Udo Birnbaum, Defendant, hereinafter referred to as "Birnbaum", and in support of his cause of action would respectfully show unto the Court as follows:

I.

         Jones is an individual residing in Van Zandt County, Texas.

        Birnbaum is an individual residing at Route 1, BOX 295, Eustace, Van Zandt County, Texas. Service is necessary at this time at the foregoing address.

II.

        Jones at all times herein mentioned was, and now is, the owner and occupier of real property situated in the County of Van Zandt, State of Texas, described as follows: (attached as Exhibit "All and incorporated herein). Jones brings this action as provided by Section 11.086 of the Texas Water Code.

III.

        Birnbaum at all times mentioned herein was, and now is, the owner and occupier of real property situated in the County of Van Zandt, State of Texas, described as follows: (attached as Exhibit "B" and incorporated herein).

IV.

        For many years prior to the filing of this action, a certain stream of water (spring creek) has run along and through Jones' land and on down, along, and through Birnbaum's land, where It continues on an easterly direction.

V.

       For many years prior to 1994, the spring creek flowed through Jones' and Birnbaum's lands in a natural and well-established course, during all stages of its water level, including periods of natural and ordinary flooding.

VI.

        During 1994, Birnbaum wrongfully built and has at all times since then wrongfully maintained a dam on his land in the natural channel of the spring creek, to the height of approximately four (4) feet, and extending along the spring creek in the channel thereof for a distance of twenty (20) feet.

VII.

        By building and maintaining the above-described dam, Birnbaum altered the natural condition of the spring creek so as to change the natural course and flow thereof, and cause the water therein to overflow and to. be concentrated in increased volume on and over Jones' lands in such a manner as to cause great and irreparable injury to Jones' lands and damage to Jones in that such overflow and concentration caused a large portion of Jones' land to be flooded continually, ditches to be formed thereon, a large portion of Jones land to be overflowed and so soaked as to make it untillable, and sand, driftwood, and debris to wash onto Jones' land, and to settle and remain thereon.

VIII.

        Birnbaum's diversion of the water of the spring creek is contrary to the prohibition contained in Section 11.06(a) of the Texas Water Code, in that such diversion was done in a manner that damaged and continues to damage the property of Jones by the overflow of the water diverted.

IX.

        As a result of Birnbaum's wrongful and illegal acts, Jones has been deprived of the use of a large portion of his land, to his damage in a sum which exceeds the minimum jurisdictional limits of this Court.

X.

        Unless Birnbaum is ordered by this Court to remove the dam constructed on Birnbaum's land and enjoined from obstructing the natural f low of the spring creek by such dam or any similar or other device or construction, Jones will suffer greater, additional, and irreparable damage and will be put to the necessity of bringing a multiplicity of actions to protect his rights and property.

XI.

        Jones was required to obtain the services of RICHARD L. RAY, a duly licensed attorney in the State of Texas, to prosecute this claim. Under Article 2226, Jones is entitled to reasonable attorney fees incurred in prosecution of this claim, which Jones alleged to be $10,000 for trial of this cause and if said cause is appealed to the Court of Appeals, $5,000, and if said cause is appealed to the Supreme Court, another $5,000.

1. Jones have judgment against Birnbaum in an amount which exceeds the minimum jurisdictional limits of this Court;

2. Birnbaum be compelled to remove the dam constructed on Birnbaum's land and restore the flow of water in the spring creek to its original, natural, condition;

3. Birnbaum be perpetually enjoined from obstructing the spring creek in the full and natural flow of water therein, or permitting or causing the same to be so obstructed;

4. The Court award Jones costs of suit herein and grant such other and further relief, at law and in equity, as may be deemed proper.