Doeppenschmidt v. International & G. N. R. Co.

• Decision Date: 08 May 1907
• Citation: 101 S.W. 1080
• Parties: DOEPPENSCHMIDT v. INTERNATIONAL & G. N. R. CO.
• Court: Texas Supreme Court

101 S.W. 1080

DOEPPENSCHMIDT v. INTERNATIONAL & G. N. R. CO.

Supreme Court of Texas.

May 8, 1907.

Certified Questions from Court of Civil Appeals, Third Supreme Judicial District.

Action by Jacob Doeppenschmidt against the International & Great Northern Railroad Company. From an order sustaining a general demurrer and several special exceptions to plaintiff's petition, plaintiff appealed to the Court of Civil Appeals, which certifies questions to the Supreme Court.

F. J. Maier, for appellant. S. R. Fisher, S. W. Fisher, J. H. Tallichet, J. M. King, and N. A. Stedman, for appellee.

GAINES, C. J.

Certified question from the Court of Civil Appeals for the Third Supreme Judicial District. The statement and question are as follows:

"Appellant brought this suit against appellee, seeking to recover damages upon the theory that the defendant wrongfully permitted Johnson grass to mature and go to seed upon its right of way, from which it was washed to and upon the plaintiff's land, causing it to become infested with Johnson grass and materially damaged and its market value materially diminished. The trial court sustained a general demurrer and several special exceptions to the plaintiff's petition. The plaintiff has appealed, and assigns as error the rulings referred to. This court is of the opinion that the special exceptions were not well taken, and should have been overruled. We are also of the opinion that the plaintiff's petition states a cause of action within the purview of the act of the Twenty-Seventh Legislature (Laws 1901, p. 283, c. 117), prohibiting railway companies from permitting Johnson grass to go to seed upon their right of way, for the recovery of actual damages as well as the penalties prescribed by that act. Following the ruling of this court in Railway Co. v. Stokes, 91 S. W. 328, the court below evidently held that so much of the act as authorized a recovery for damages was unconstitutional, because not embraced in the caption of the act. There being now some doubt as to the correctness of our former ruling, which was, to some extent, induced by an intimation of the Supreme Court, in Railway Company v. Burns, 87 S. W. 1147, we have concluded to certify, and do hereby certify, that question to the Supreme Court for decision. It is a material question presented for decision, as will appear from copies of the briefs hereto attached and made part hereof.

"We formulate the question as follows: Is that portion of the act referred to which permits the recovery of damages, in violation of section 35 of article 3 of the Constitution of this state, which provides that no bill shall contain more than one subject which shall be expressed in its title, and did the trial court err in so holding?

"In addition to the cases cited above, we respectfully refer to Johnson v. Martin et al., 75 Tex. 33, 12 S. W. 321, and Snyder v. Compton, 87 Tex. 374, 28 S. W. 1061."

We are of the opinion that so much of the act as allows a recovery of actual damages by an adjacent landowner against a railroad company for the spread of Johnson grass from the right of way of the company is not inoperative because not expressed in the title. We here insert the act, including its title:

"An act to prohibit railroad and railway companies or corporations in this state from permitting Johnson grass or Russian thistles from going to seed upon their right of way, and fixing a penalty.

"Section 1. Be it enacted by the Legislature of the state of Texas: It shall hereafter be unlawful for any railroad or railway company or corporation doing business in this state to permit any Johnson grass or Russian thistles to mature or go to seed upon any right of way, owned, leased or controlled by such railroad or railway company or corporation in this State.

"Sec. 2. If it shall appear upon the suit of any person owning, leasing or controlling land...