Ft. Worth & D. C. Ry. Co. v. Speer

• Decision Date: 29 March 1919
• Docket Number: (No. 9037.)
• Citation: 212 S.W. 762
• Parties: FT. WORTH & D. C. RY. CO. v. SPEER.
• Court: Texas Court of Appeals

Page 762

212 S.W. 762

FT. WORTH & D. C. RY. CO. v. SPEER.

(No. 9037.)

Court of Civil Appeals of Texas. Ft. Worth.

March 29, 1919.

Appeal from District Court, Wise County; F. O. McKinsey, Judge.

Suit by Oran Speer against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thompson & Barwise, of Ft. Worth, and McMurray & Gettys, of Decatur, for appellant.

Ocie Speer, of Ft. Worth, and J. V. Patterson, of Decatur, for appellee.

BUCK, J.

This is a suit by plaintiff, Oran Speer, against the Ft. Worth & Denver City Railway Company for damages to his land and the loss of crops thereon, alleged to have been caused by the construction and maintenance of a bridge across Sandy creek, which runs through and across plaintiff's land. The petition alleged in part as follows:

"Plaintiff would further show that in constructing its said track and line of railroad defendant built the same across said water course and creek and constructed thereon a railroad bridge of heavy timber and materials at such a height and in such a manner as seriously and materially to impede and interfere with the flow of water down said stream and to divert the water therefrom, and to cause it to spread out over and to injure said land in the manner hereinafter shown; that in the construction of said bridge and structure defendant did not, as it was required by law to do, leave sufficient passway for the water to allow the passage thereof down said stream, as it was accustomed to do; that the heavy and numerous timbers placed by defendant in the channel of said stream not only partly and largely closed the channel thereof, but that they caused to gather at said point heavy drifts from the floating waters on said stream, thereby choking and closing the channel of said creek and further causing the water to be delivered as aforesaid."

It was further alleged that by reason of the general lay of the land and the course of the stream, said structure caused the water to overflow plaintiff's land on the south and west side of the creek, said land being known and described as the Hatchett tract, consisting of 55 acres, and also across the land on the east side of the creek, being 105 acres, described as the Riley tract, cutting away the banks and washing the land and making it less productive, and also destroying plaintiff's crops raised thereon. Plaintiff alleged that said lands were good agricultural lands, and, though the bridge had been built several years, that until the fall or winter of 1914 said land did not overflow so badly. But that the increased damage to the land and crops was caused by the filling up of the bed of the stream and the cutting of the banks. Plaintiff further alleged his land was mostly used for a Johnson grass meadow, and that during the year 1915-1916 he lost the entire crop of hay by reason of the overflow.

Defendant answered by way of general demurrer, special exceptions, plea of limitation of 2 years, by general denial, and specially pleaded that long before defendant's line of railroad and bridge were constructed plaintiff's land had been subjected to overflows, causing the water to flow over plaintiff's land and to damage the soil and the crops, and that if plaintiff had suffered any loss by reason of overflows it was only such damage as naturally resulted from the lay of the land and the character of the stream, and that said losses did not arise by reason of any construction made by defendant.

The cause was tried before a jury on special issues, the jury finding:

(1) That the defendant did not, prior to November 2, 1914 (2 years anterior to filing of suit), and up to the time when its bridge across Sandy creek was removed, maintain in said bridge the necessary culverts and sluices as the natural lay of the land required for the drainage thereof.

(2) That plaintiff's land had been caused to overflow with water from Sandy creek by reason of defendant's failure to maintain in its bridge the necessary culverts and sluices.

(3) That plaintiff had lost a portion of his crop since November 2, 1914, by reason of said failure, and that $1,200 would compensate him therefor.

(4) That plaintiff's lands had been injured by reason of defendant's said failure, and that $600 was the measure of such loss.

Upon this verdict the court entered a judgment for plaintiff in the sum of $1,800, from which defendant has appealed.

Appellant's first and second assignments of error are directed to the failure of the court to give specially tendered peremptory instructions for defendant. The first, on the ground that the evidence showed conclusively and without contradiction that the rains and floods causing the overflows were such as would have caused overflows and damage irrespective of the presence or condition of the railroad and bridge, just as such had occurred before the railroad and bridge were constructed. The second, on the ground that since the evidence showed that the bridge and railroad had been constructed, and were in the condition alleged at the time of the alleged damage, for many years prior to November 2, 1914, two years before filing of the suit, plaintiff's cause of action was barred by the statute of 2 years' limitation. We will discuss the second assignment first. The evidence tended to show that the bridge constructed by appellant was built upon large timbers or pilings, some 36 or 40 in number, placed in the bed of the stream, and that these pilings more or less interfered with the natural flow of the water down the channel of the stream, and caused to collect on the upper side of such obstruction trees and other drift. The result was that, the current of the stream being impeded, the bed of the stream more or less filled up with silt and sand. At times of heavy rains there was an increased tendency of the water to overflow and run across plaintiff's lands. The width of the stream ranged from 40 to 50 feet, and from the fact that later the railroad company did remove the obstruction, as well as from the knowledge possessed by the court in common with men of general intelligence and experience, it would seem that the pilings, as placed, were not of such a permanent nature as that they might not be removed at the outlay of a reasonable cost, and the injurious effect therefrom abated and remedied. In M., K. & T. Ry. Co. v. Anderson, 194 S. W. 662, in discussing the question of what should be regarded as a permanent injury, this court held that in case of damages from the diversion of the natural flow of the water by an obstruction built by a railroad, the injury is to be regarded as permanent, where the cost of remedying it would be so great as to justify the railroad in condemning the property and taking it under the power of condemnation, but if the injury can be remedied at a reasonable expense, it may be regarded as temporary, and the question whether the injury is permanent or temporary may be for the jury. In Houston Waterworks v. Kennedy, 70 Tex. 233, 8 S. W. 36, our Supreme Court laid down two rules, amply sustained by authority, which should be kept in mind in the determination of the question of limitation, involved in cases of this character:

(1) "When an act is in itself lawful as to the person who bases thereon an action for injuries subsequently accruing from and consequent upon the act, the cause of action does not accrue until the injury is sustained."

(2) "If an act is done which in itself is an invasion of the right of another, which being done, injury is the natural sequence, then limitation will run against the right to recover damages from the time the unlawful act was committed, though the injury may not have been discovered until within a period before suit less than would be sufficient to complete the bar of the statute."

In the instant case it does not appear that the construction of the bridge as built was unlawful, or that at the time of the building there was any invasion of the rights of the plaintiff or any injury to his land. It was only upon the occasion of heavy rains and consequent increased flow of water down the stream that the impediment created such an obstruction as caused the water to overflow plaintiff's lands and injure them and the crops thereon. In Railway Co. v. Anderson, 79 Tex. 427, 15 S. W. 484, 23 Am. St. Rep. 350, our Supreme Court laid down the rule that where a nuisance is permanent and continuing the damages resulting from it should all be litigated in one suit, but when it is not permanent, but depends upon accidents and contingencies, so that it is of a transient character, successive actions may be brought for injury as it occurs; and an action for such injury would not be barred by the statute of limitations unless the full period of the statute had run against the special injury before the suit. See, also, Railway Co. v. Brown, 38 Tex. Civ. App. 610, 86 S. W. 659; Railway Co. v. Helsley, 62 Tex. 593; Clark v. Dyer, 81 Tex. 339, 16 S. W. 1061.

We conclude that the peremptory instruction for defendant was not called for by reason of limitation. The damage for which plaintiff sought recovery was the injury to his lands and crops within the 2 years' period.

But the first assignment presents a more serious question. If the plaintiff was entitled to recover for damage to the soil as well as damage to and loss of his crops, the measure of his damage was the difference in the loss he did sustain and the loss he would have sustained by reason of overflows...