Jesse H. Bennett Et Ux v. Brown County Water Improvement District No. One

Norman Eugene Bennett, eight-year-old son of petitioners, was drowned when he fell into an irrigation ditch owned and operated by respondent as a part of the function of storing and distributing flood waters in Brown County, Texas. Petitioners filed suit for damages against respondent alleging that respondent was guilty of negligence in the construction and operation of the irrigation ditch at the place where young Bennett was drowned; that such ditch and the water therein at the place where the regrettable accident occurred constituted an "attractive nuisance" to one of the tender years of young Bennett; and that the respondent was guilty of maintaining a nuisance at the time and place in question. Respondent filed a motion to dismiss the petition on the ground that the plaintiffs petition showed respondent at the time and place in question to be a governmental agency engaged in carrying out the public rights and duties imposed upon it by law and for which it was created. The trial court sustained the motion to dismiss and the Bennetts declined to amend, and appealed to the Court of Civil Appeals. In the Court of Civil Appeals the judgment of the trial court was affirmed. 261 S.W.2d 754.