Austin & N. W. R. Co. v. Anderson

• Decision Date: 31 May 1892
• Parties: AUSTIN & N. W. R. CO. v. ANDERSON.
• Court: Texas Supreme Court

19 S.W. 1025

AUSTIN & N. W. R. CO. v. ANDERSON.

Supreme Court of Texas.

May 31, 1892.

Commissioners' decision. Section A. Appeal from district court, Travis county; W. M. KEY, Judge.

Action by John Anderson against the Austin & North western Railroad Company for overflowing plaintiff's land. From a judgment for plaintiff, defendant appeals. Affirmed.

Fiset & Miller, for appellant. Milton White, for appellee.

COLLARD, J.

This suit was brought in justice's court by the appellee against appellant for damages, in which court judgment was rendered for appellee for $170 damages. The case was appealed by the railroad company to the district court, where there were verdict and judgment for appellee for $100, from which this appeal was taken.

The transcript from the justice's court, it seems from the docket, characterizes the suit as "suit on damages to cotton crop and damage to land which the crop was on at the time, caused by usual rains, by obstructing water between February 1, 1889, and June 18, 1889, diverting said water from its usual and natural course, and causing the same to flow upon, wash away, and destroy said crop, to the amount of $40, and damage to the land to the amount of $150, and damage to the fence to the amount of $2.50; all produced by the same cause." The account filed by plaintiff is as follows:

                "Austin & Northwestern R. R. Co. to John Anderson
                   Dr
                To damages to crop of cotton planted on
                 23 acres of ground, by obstructing water
                 produced by ordinary rains between February
                 1 and June 18, 1889, diverting said
                 water from its usual and natural course
                 and causing the same to flow upon, wash
                 away, and destroy said crop.............     $ 40 00
                To damage to the land upon which the crop
                 was growing, produced by the same
                 causes .................................      150 00
                To damage to fence produced by same
                 causes .................................        2 50
                                                              _______
                                                              $192 50
                

Defenses pleaded by defendant were general demurrer; special exceptions to items and allegations as being too vague, indefinite, and uncertain to show any legal liability; general denial; and statute of limitations of two years.

It was in proof that plaintiff was damaged, as alleged, by the overflow of water on his land and crop, turned on his farm in a body by the construction of the railroad and a culvert; and it was in proof that he could have prevented the overflow by cutting a ditch on the line of his land where the water struck it, and that the ditch would not have cost more than $35. He was able to have the ditch cut, and knew that ordinary rains coming through the culvert would submerge his land as it did, as he had, prior to this suit, recovered a judgment against the company for similar injury caused in the same way.

There...