Mexican Nat. Construction Co. v. Middlegge

• Decision Date: 21 January 1890
• Citation: 13 S.W. 257
• Parties: MEXICAN NAT. CONSTRUCTION CO. <I>et al.</I> <I>v.</I> MIDDLEGGE.
• Court: Texas Supreme Court

Page 257

13 S.W. 257

MEXICAN NAT. CONSTRUCTION CO. et al.

v. MIDDLEGGE.

Supreme Court of Texas.

January 21, 1890.

Error from district court, Harris county.

Thos. W. Dodd and Waul & Walker, for plaintiffs in error. S. S. Hanscom and J. R. Burnett, for defendant in error.

STAYTON, C. J.

Appellee alleges that he owns and resides upon land on Galveston island, distant from the Gulf about 1,000 yards, and that between his property and the Gulf the Mexican National Construction Company owned, at the time this action was brought, 80 or 90 acres of land, from which it had taken sand, and transported the same to the city of Galveston for sale; that in taking sand from its own land defendant had made deep excavations, which filled with stagnant water and filth, and thereby rendered his home unhealthy. He further alleged that on the border of the Gulf were sand hills formed by natural causes, which operated as a barrier to the waters of the Gulf, and that these had been removed by defendant, since which, during storms, waters from the Gulf came across defendant's lands, and injured his property, as waters aforetime, during such storms, did not. It is not claimed, however, that, during ordinary tides, waters from the Gulf reach plaintiff's property. There is great conflict in the evidence whether plaintiff suffers injury from the cause alleged, and much evidence tending to show that plaintiff's property would suffer such injury if no sand had been removed from defendant's property. The action was commenced on May 17, 1886. On September 12, 1888, plaintiff filed a supplemental petition, in which he alleged that the Galveston & Western Railway Company, a corporation chartered under the laws of this state, on February 29, 1888, purchased defendant's narrow-gauge railroad, known as the "Texas Mexican Railroad," and received some kind of a transfer from defendant for the lots from which sand had been taken, and that since that time the Galveston & Western Railway Company had continued to take sand from the lots, thereby daily adding to the injury done to his property. He further alleges that, at the time the supplemental petition was filed, both corporations were engaged in excavating and hauling sand from near the sea-shore, thus increasing the danger to his property. There was a prayer that the Galveston & Western Railway Company be made a defendant, "and that on hearing he have judgment against it jointly with the defendant for all damages sustained by him by reason of the premises." There were the further averments that the last-named corporation had "fully ratified the previous acts and wrongs of defendant in reference to damaging plaintiff's premises by said excavations," and that in fact that corporation was but "the nominal successor of defendant, as the controller and owner of said railroad, and as the controller and...