Couch v. Texas & P. Ry. Co.

• Decision Date: 05 February 1906
• Citation: 90 S.W. 860
• Court: Texas Supreme Court
• Parties: COUCH v. TEXAS & P. RY. CO. et al.

Page 860

90 S.W. 860

COUCH v. TEXAS & P. RY. CO. et al.

Supreme Court of Texas.

February 5, 1906.

Error from Court of Civil Appeals of Second Supreme Judicial District.

Action by John Couch against the Texas & Pacific Railway Company and another. There was a judgment of the Court of Civil Appeals affirming a judgment for defendants (87 S. W. 847), and plaintiff brings error. Reversed.

Bowyer & Tillett, for plaintiff in error. H. C. Shropshire and Otis Bowyer, for defendants in error.

BROWN, J.

We adopt the statement of the Court of Civil Appeals as follows:

"This suit was brought by John Couch against the Texas & Pacific Railway Company and the city of Baird to recover damages in the sum of $15,000 for the alleged conversion of water from a well averred to be on appellant's premises. Upon hearing the evidence the court peremptorily instructed a verdict for appellees. Couch has appealed from the judgment entered on the verdict. These are the facts: The right of way of the railway company runs through the N. W. ¼ of section 90, B. B. B. & C. R. R. land on practically a straight line. The company constructed its road over the land in 1879 and 1880, when it was public school land, and it had the right of way thereover by virtue of article 4167, Rev. St. 1879, for its road. The quarter section in controversy was first filed on by F. D. Merchant, plaintiff's assignor, on the 3d of January, 1881, and was patented to plaintiff, as assignee, on the 7th of February, 1902. The well in controversy was dug by the railway company on the quarter section, and is located on the north side of its railroad track and on its right of way. On the 6th day of March, 1889, Couch sold and conveyed to Norton and McGown the following described portion of said land: A portion of N. W. ¼ of section ninety (90), B. B. B. & C. R. R. Co., about 2½ miles west of Baird, commencing at N. E. corner of the N. W. ¼ of said section ninety (90), stake and stone mound, from which a p. o. 10 brs. S. 62½ W. 217 vrs., marked `R'; do. 10 brs. N. 77 W. 38½ vrs., marked `X'; thence west 950 vrs., to S. E. corner No. eighty (80), B. B. B. & C. Ry. Co. land, stone and mound for corner, from which a black jack 8" brs. S. 28 E. 21 vrs., mk'd `N. W.,' 90 a p. o. 19 brs. N. 83 W., 80 vrs. mk'd `RR'; thence south, about 190 vrs., to right of way of the Texas & Pacific Railway; thence east, with said T. & P. Ry. right of way, about 950 vrs., to corner; thence north, about 110 vrs., to stake and stone mound, from which a p. o. 10" brs. S. 62½ W. 217 vrs., mk'd `R,' p. o. 10" brs. N. 77 W. 38½ vrs., marked `X,' to place of beginning —containing forty (40) acres more or less. The county surveyor of Callahan county testified as follows: `Beginning at the northwest corner of section 90, and running south 190 varas, will carry you to the Texas & Pacific Railroad track. This...