Burlington-Rock Island R. Co. v. Newsom

• Court: Texas Court of Appeals
• Writing for the Court: Hale
• Citation: Burlington-Rock Island R. Co. v. Newsom, 219 S.W.2d 129 (Tex. App. 1949)
• Decision Date: 10 March 1949
• Docket Number: No. 2846.,2846.
• Parties: BURLINGTON-ROCK ISLAND R. CO. v. NEWSOM et ux.

219 S.W.2d 129

BURLINGTON-ROCK ISLAND R. CO. v. NEWSOM et ux.

No. 2846.

Court of Civil Appeals of Texas. Waco.

March 10, 1949.

Appeal from District Court, Freestone County; Lex Smith, Judge.

Suit by Luther O. Newsom and wife against Burlington-Rock Island Railroad Company for damages and injunctive relief. Judgment for plaintiffs, and defendant appeals.

Judgment affirmed.

Williford & Williford, of Fairfield, and Ellen Victery, of Teague, for appellant.

Bowlen Bond, of Teague, for appellees.

HALE, Justice.

Appellees, Luther O. Newsom and wife, sued appellant, Burlington-Rock Island Railroad Company, for damages and injunctive relief. Their claims for damages were grounded upon allegations to the effect that appellant had permitted Johnson grass to mature and go to seed upon its right-of-way during each of the years from 1946 to 1948, inclusive; that such grass had spread to and upon their contiguous land causing them to expend certain time and labor of the value therein set forth in exterminating the same from their land; that by reason thereof they were entitled to recover the statutory penalty of $25 for each of the three years in addition to their damages; that appellant had failed to construct and maintain its roadbed, tracks and a certain culvert thereunder in such manner as to carry surface waters resulting from an ordinary rainfall off of their land through such culvert, the natural drainage being in the direction of said culvert, and as a result thereof they had sustained five items of damages as therein specified; and that, as a further result of such failure a hole of stagnant water had accumulated at the end of the culvert, causing foul odors and mosquitoes to emanate therefrom to appellees' annoyance, discomfort and damage. They further alleged that the conditions arising from the insufficiency of the culvert constituted a nuisance, that by reason of the recurring nature of the injuries and damages resulting therefrom they had no adequate remedy at law against a continuation thereof and they sought to have the same abated by injunction. Appellant answered with a motion to require appellees to implead an additional party into the suit and with a general denial.

The case was tried before a jury. In answer to Special Issues Nos. 1 to 16, inclusive, the jury found in substance that during the month of May in 1947 and again in 1948 there was an ordinary rainfall on appellees' land, the natural drainage from which was through the culvert under appellant's roadbed; that appellant failed to maintain said culvert in such condition as to carry the surface waters off of appellees' land and as a result thereof such waters backed up on a part of appellees' land, thereby causing damages of a personal nature to appellees in five separate particulars, in the total aggregate sum of $132. In response to Issues Nos. 17 to 28, inclusive, the jury found in effect that appellees did not permit Johnson grass to mature and go to seed upon their land in the years 1946, 1947 or 1948, but that appellant did permit Johnson grass to mature and go to seed on its right-of-way adjacent to appellees' land during each of such years, that the same spread to appellees' land and as a result thereof appellees expended labor of the value of $55 in digging up and removing the grass from their land. In answer to Issues Nos. 29 to 37, inclusive, the jury found that during the years of 1946 and 1947 appellant permitted a hole of water at the opening of the east end of the culvert in question to become a stagnant breeding place for mosquitoes, that mosquitoes coming from such hole caused physical discomfort and annoyance to appellee, Luther O. Newsom in the enjoyment of his home to his damage in the sum of $250 and that the culvert, at the time of the trial in 1948, was insufficient to carry surface waters from an ordinary rainfall off of appellees' land.

Based upon the pleadings, evidence and findings of the jury, the trial court held that the answer of the jury to Special Issue No. 9 was excessive by the sum of $5 and rendered judgment in favor of appellees for the total sum of $507. By the terms of the judgment appellant was enjoined from further obstructing or interfering with the natural flow of surface waters from appellees' land at the point where a concrete box is located in the embankment, decreeing that a mandatory writ of injunction issue to appellant commanding it to remove the portion of the embankment remaining around the concrete box in its embankment and to construct all such necessary culverts and sluices in its embankment at said point as the natural lay of the land adjacent thereto may require for the necessary drainage of ordinary rainfall.

The first point in appellant's brief is: "The court erred in submitting to the jury Issues Numbers 17 to 28, inclusive, for the reason that recovery under what is known as our `Johnson Grass' Statute is dependent upon proper pleadings of such statute, and this was not done." We overrule this point of error. In doing so we recognize that art. 6401 of Vernon's Tex. Civ.Stats., commonly known as the Johnson Grass Statute, provides an exclusive remedy and that in suits for the recovery of penalties thereunder the pleadings ought to be strictly construed against the party seeking to enforce the provisions thereof. Although appellees did not expressly plead a violation of this statutory enactment by referring to the number of the article within which it is embraced, they did plead the material substance of the fact elements involved in the same,...