Cosden Oil Co. v. Sides

• Citation: 35 S.W.2d 815
• Decision Date: 06 February 1931
• Docket Number: No. 802.,802.
• Parties: COSDEN OIL CO. v. SIDES et al.
• Court: Texas Court of Appeals

35 S.W.2d 815

COSDEN OIL CO. v. SIDES et al.

No. 802.

Court of Civil Appeals of Texas. Eastland.

February 6, 1931.

Appeal from District Court, Howard County; Fritz R. Smith, Judge.

Action by Lillie Opal Sides and husband against the Cosden Oil Company. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded.

Ike A. Wynn, of Fort Worth, and Brooks & Woodward, of Big Spring, for appellant.

Clyde E. Thomas and Martelle McDonald, both of Big Spring, for appellees.

FUNDERBURK, J.

Cosden Oil Company was defendant below, and this appeal is from a judgment against it in favor of Lillie Opal Sides and her husband for damages in the sum of $1,112.50 for injury to a certain 52-acre tract of land and growing grass thereon. alleged to have resulted from "oils, oil waste and oil products" being permitted to flow upon same. The case was tried with a jury, to whom was submitted special issues, of which one, with the answer thereto, was as follows:

"If you answer Special Issue No. 2 in the affirmative, or `yes,' then answer in dollars and cents the following special issue:

"Special Issue No. 3: What would fairly compensate plaintiff, if paid now, in cash, for such damage, if any? Answer: $1,112.50."

We are first called upon to determine if the evidence was sufficient to support the finding of the jury in answer to said special issue No. 3. This question involves a consideration of the nature and amount of damages, if any, recoverable under the pleadings. Upon one theory plaintiff sought recovery of damages, measured by the market value of 15 acres of land out of a 52-acre tract. The 15 acres were alleged to have been of the market value of $100 per acre, and which market value was totally destroyed, amounting to $1,500. Upon an alternative theory there was sought to be recovered as damages the value of grass or hay for the year 1929, and for each year thereafter, including ten years, amounting to $150 a year, or an aggregate of $1,500. Under both theories facts were alleged sufficient to show a permanent injury to the land. The damages recoverable, if any, for that character of injury, was the amount of depreciation in the value of the land proximately resulting from the injuries. Under the second named theory the value of grass or hay was recoverable only for the year 1929. Damages measured by the value of crops of grass or hay for the future years were not only not recoverable because of being too remote as a matter of law, but were precluded by affirmative allegations of plaintiffs' pleading, to wit: "The injuries and damages complained of above have all accrued to this date and plaintiffs are in this petition suing for and asking for only such damages as have actually been caused by defendant to this date." Assuming plaintiffs' pleadings to have been sufficient to authorize recovery of some amount of damages, and that the two theories of recovery stated as alternative were not in fact inconsistent to the extent of one being exclusive of the other, the only damages that could be recovered under the pleadings were: (1) For permanent injury to the land, measured by the difference in the value of the land just before and just after the injuries complained of, excluding the value of the grass; (2) for the destruction of grass or hay, measured by the value of same. "Where an injury to pasture or meadowland results in the destruction of the grass or hay thereon, considered as a crop, the measure of damages is the value of such crop at the time and place of destruction. Where the injury also results in an injury to the land itself, as by destruction of the turf or grass roots, plaintiff is entitled to a further recovery which, by some authorities is measured by the diminution of the value of the land, or, which is probably equivalent, such amount as will compensate for the injury done to the turf and roots, taking into consideration the purposes to which the owner was appropriating or desired to appropriate the land, or to which it was adapted." 17 C. J. 893.

Among many Texas cases supporting the text, and particularly the proposition that the measure of damages for a permanent injury to the land is the difference in the value before and after the injuries, there may be mentioned the following: Ft. W. & N. O. Ry. Co. v. Wallace, 74 Tex. 581, 12 S. W. 227; Fort Worth & D. C. Ry. Co. v. Hogsett, 67 Tex. 685, 4 S. W. 365; Trinity, etc., Co. v. Gregory (Tex. Civ. App.) 142 S. W. 657; Tex., etc., Ry. Co. v. Prude, 39 Tex. Civ. App. 144, 86 S. W. 1046; Mo., etc., Ry. Co. v. Malone, 59 Tex. Civ. App. 254, 126 S. W. 936; I. & G. N. Ry. Co. v. McIver (Tex. Civ. App.) 40 S. W. 438; Gulf, etc., Co. v. Hendricks (Tex. Civ. App.) 25 S. W. 433; M., K. & T. Ry. Co. v. Goode, 7 Tex. Civ. App. 245, 26 S. W. 441.

Under the principles declared in these authorities, we are not prepared to say that the evidence was wholly insufficient to sustain a finding of damages for the value of the grass or hay destroyed. Under the pleadings, however, the maximum amount that could have been allowed for that item of damage was in all events limited to the sum of $150. The remainder of the damages found by the jury must be sustained, if at all, by evidence from which the jury could determine the amount, if any, of depreciation in the value of the land, exclusive of the value of the growing grass. If the land had, as alleged, a market value, that would be controlling. No witness testified to the market value of the land either before or after the alleged injury. No witness testified that the land had no market value. Situated as it was, but a few miles from a city shown by one witness to have a population of 12,000 or 13,000, we cannot presume that it had no market value. Testimony with reference to intrinsic value, in the absence of evidence that there was no market value of the land, was incompetent. Being incompetent, it is not to be considered in determining the sufficiency of the evidence. Henry v. Phillips, 105 Tex. 466, 151 S. W. 533. There was no other evidence of facts sufficient to justify the jury in finding any particular amount as the amount of decrease in the value of the land. We are therefore of opinion that the evidence was insufficient to support the verdict.

It was objected to special issue No. 3, calling for a finding of the amount of damages, that the court's charge furnished no guide to the jury upon which they might determine the proper measure of damages. It will be observed that the issue itself did not submit the elements of damages claimed. Sufficient has already been said to show that this was a case wherein it was peculiarly imperative that the court give the jury appropriate explanations to enable them to properly measure the damages. The failure to do so was reversible error. Glasscock v. Shell, 57 Tex. 215; G., H. & S. A. Ry. Co. v. Le Gierse, 51 Tex. 189; Texas Nursery Co. v. Knight (Tex. Civ. App.) 292 S. W. 589; K. C., M. & O. Ry. Co. v. Worsham (Tex. Civ. App.) 149 S. W. 755; Quanah A. & P. Ry. Co. v. Galloway (Tex. Civ. App.) 154 S. W. 653; H. & T. C. Ry. Co. v. Buchanan, 38 Tex. Civ. App. 165, 84 S. W. 1073; Beeman St. Clair Co. v. Caradine (Tex. Civ. App.) 34 S. W. 980; Hazlewood v. Pennybacker (Tex....