G., C. & S. F. R'Y Co. v. Donahoo

• Decision Date: 16 March 1883
• Docket Number: Case No. 1590.
• Parties: G., C. & S. F. R'Y CO. v. JERUSHA DONAHOO ET AL.
• Court: Texas Supreme Court

59 Tex. 128

G., C. & S. F. R'Y CO.

v.JERUSHA DONAHOO ET AL.

Case No. 1590.

Supreme Court of Texas.

Mar. 16, 1883.

ERROR from Johnson. Tried below before the Hon. Jo. Abbott.

Suit by Jerusha Donahoo, joined by Henry Donahoo, her husband, against plaintiffs in error to recover damages; first, for the appropriation by plaintiff of the right of way for its road, about one hundred by eighteen hundred feet of ground, over her lands, against her consent; and second, for flooding about thirty acres of land adjacent to its road-bed by reason of the unskilful construction of its road-bed and the failure of the company to provide sufficient drainage for conducting the surface water away. For the first alleged injury she claimed $500 and for the second $2,000.

General exception by plaintiff, general denial, and a special answer setting up a deed to right of way from Henry Donahoo, husband of Jerusha Donahoo, defendant in error, in which she did not join; want of notice of her title to the land; that the company had expended a large sum of money in building its road upon the land, and that defendants knew the company was on said land building its road and assented thereto, and were thereby estopped.

There was a trial, verdict and judgment against plaintiff for $500. Motion for new trial was made and overruled.

It was conceded by plaintiff on the trial that the land described in defendants' petition, of which the right of way appropriated by the company was a part, was the separate property of defendant Jerusha Donahoo, a married woman, Henry Donahoo being her husband; and that she refused to join him in making the deed.

The deed purporting to grant the right of way to plaintiff was prepared for the signatures of two persons; it was presented to Henry Donahoo for his signature by Walter Gresham, acting for the company, and others, securing the right of way for the company, on the 16th of September, 1880; was signed by him alone and, on the same day, filed for record in the office of the clerk of the county court; was afterwards recorded by the clerk, and set forth as a matter of defense in its pleadings, and introduced by the company in evidence on the trial of the cause in the court below.

Jerusha Donahoo refused to sign the deed, and at the time it was signed by Henry Donahoo, Mr. Walter Gresham suggested that they go to the house and get her to sign it, when he was informed by Henry Donahoo that she would not agree to sign it.

The witnesses who testified on behalf of defendants in error stated that the road enters the Donahoo land at its southwest corner and passes off near its northwest corner, severing from the tract about eight acres; that the topography of the ground adjoining and surrounding the right of way over the land, except towards the south and southeast, is such as to form natural water-sheds, down which the water flows till it reaches the road-bed and ditches of the company's road, by which it is diverted from its course, and thence sweeps along the line of the road for several hundred feet from the south towards the north, and for several hundred yards from the north towards the south, meeting and concentrating on the right of way on said land in such force and volume as to submerge a large area, estimated by the witnesses to be from ten to thirty acres; that this overflow is caused by the construction of plaintiff's road across the land, and that the company had not provided sufficient drainage to carry off the water.

The evidence further showed that only a portion of this water came on the Donahoo premises during rainfalls, before the road was built, when it was dispersed so uniformly as not to collect in volumes sufficient to overflow, while a large portion, which is now thrown upon the land by the road-bed, never came within its borders, but sought other natural outlets and ways of escape.

The value of the whole tract, at the time of the appropriation, was estimated by Donahoo to have been $40 per acre; with railroad on it, $25 per acre; by Watson, its market value at the time of taking was put at $35 or $40; by Young it was estimated at $40 or $50.

De Berry & Smith, for plaintiff in error, on estoppel, cited Williams v. Chandler, 25 Tex., 11;Dunham v. Chatham, 21 Tex., 248;Love v. Barber, 17 Tex., 318;Scoby v. Sweatt, 28 Tex., 731;Burleson v. Burleson, 28 Tex., 416.

On liability of the wife for fraud: Howard v. North, 5 Tex., 300;Cravens v. Booth, 8 Tex., 249.

W. F. George and J. M. Hall, for defendants in error.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by Jerusha Donahoo, joined by her husband, to recover damages for injury to land, her separate property, by the construction of the defendant's railway thereon; she alleging not only the unauthorized use of her land for the railway, but also that the railway was so constructed as to cause her land to be overflowed and thereby rendered less valuable for agricultural and other purposes.

The railway claims the right to use the land, which is admitted to be the separate property of Mrs. Donahoo, under a conveyance of the right of way made by her husband alone, against...