Bangle v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 18 October 1911
• Citation: 140 S.W. 374
• Parties: BANGLE v. MISSOURI, K. & T. RY. CO. OF TEXAS.
• Court: Texas Court of Appeals

140 S.W. 374

BANGLE v. MISSOURI, K. & T. RY. CO. OF TEXAS.

Court of Civil Appeals of Texas. Austin.

October 18, 1911.

Appeal from District Court, Bell County; John D. Robinson, Judge.

Action by Alfred Bangle against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for an insufficient amount, plaintiff appeals. Affirmed.

Monteith & Monteith, for appellant. Alexander S. Coke and Tyler, Hubbard & Tyler, for appellee.

Findings of Fact.

JENKINS, J.

This suit was instituted by appellant against appellee in the district court of Bell county October 20, 1908, for damages alleged to have resulted from overflow of his land by water, said damages alleged to have been occasioned by the washing of his land, and the deposit of Johnson grass and débris thereon. Appellant's land was situated in the valley of Little River. The roadway of appellee ran through said land on an embankment about a quarter of a mile in length, through which there were openings, aggregating about 568 feet. These openings were at places where there were natural depressions in the land. Appellant's land would have been overflowed at the time alleged had said embankment not been erected, but it is alleged that the embankment held the water, and that the same was forced through said openings with great force and violence, and washed Johnson grass and roots and seed from said embankment and growing in said openings, and deposited the same on appellant's land. There had been a former suit by appellant against appellee for alleged damages of a similar character, which had been compromised by the payment of $1,400 by appellee to appellant. There was a watershed, several miles in extent, from which water drained onto and across appellant's land, and on this watershed there was a great deal of Johnson grass growing. There was also Johnson grass growing on appellant's land prior to said overflow. Appellee's right of way was covered with Johnson grass. The case was submitted to a jury, which found in favor of appellant the sum of $75 as damages done to his land. No damages were found by reason of Johnson grass being washed onto appellant's land.

Opinion.

In the second, third, fourth, fifth, and fourteenth assignments of error, which are submitted together, the appellant complains of the charge of the court to the effect that no damages should be allowed the plaintiff occasioned by the washing of Johnson grass on his land, unless the same was caused by the diversion of water from its natural course.

The first proposition submitted under these assignments is that said charge unduly emphasized the issues to the prejudice of plaintiff, and had the effect of setting aside the general charge, which it is alleged was correct, and should have been followed by the jury. The general charge quoted by appellant and referred to in said assignments made no reference to injuries accruing from the deposit of Johnson grass.

The defendant was entitled to have the issues upon its behalf presented in an affirmative manner, and we do not think that plaintiff's proposition is sound. Railway Co. v. Ayres, 83 Tex. 269, 18 S. W. 684; Railway Co. v. Kiersey, 98 Tex. 595, 86 S. W. 744; Railway Co. v. Hall, 98 Tex. 488, 85 S. W. 786; Railway Co. v. Worth (Civ. App.) 107 S. W. 963; Railway Co. v. McGlamory, 89 Tex. 638, 35 S. W. 1058.

Appellant's second proposition is that said special charge was erroneous, for the reason that it is unlawful for a railroad company to permit Johnson grass to mature and go to seed on its right of way; therefore that plaintiff was entitled to damages if Johnson grass growing and maturing on the right of way was deposited on plaintiff's land by natural causes. The law in this regard referred to by appellant is chapter 117, p. 283, Acts 27th Leg., which gives a right of action to any one who owns land adjoining a railroad right of way, if said company permits Johnson grass to go to seed upon its right of way. This law, however, is not applicable where the party complaining has himself permitted Johnson grass to go to seed upon his land. It is a sufficient answer to appellant's contention in this regard to say that his suit is not based upon this act of the Legislature, that the evidence does not show that the railway company permitted Johnson grass to go to seed on its right of way, but, on the other hand, the evidence does show that appellant had permitted Johnson grass to go to seed on his land adjoining said right of way; and a further answer is that the verdict of the jury amounts to a special finding that no Johnson grass was deposited upon appellant's land by reason of anything done by appellee.

Independent of the statute, there will be no liability on the part of a railroad company for permitting Johnson grass or other noxious vegetation to grow on is right of way where the same is spread upon adjacent land by wind, water flowing in its natural course, or other natural causes. Railway Co. v. Oakes, 94 Tex. 162, 58 S. W. 999, 52 L. R. A. 293, 86 Am. St....