Gulf, B. & G. N. Ry. Co. v. Roberts

• Decision Date: 08 April 1905
• Citation: 86 S.W. 1052
• Parties: GULF, B. & G. N. RY. CO. v. ROBERTS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

86 S.W. 1052

GULF, B. & G. N. RY. CO. v. ROBERTS.^*

Court of Civil Appeals of Texas.

April 8, 1905.

Appeal from District Court, San Augustine County; Tom C. Davis, Judge.

Action by T. B. Roberts against the Gulf, Beaumont & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. W. Terry, F. J. & R. C. Duff, and A. L. Davis, for appellant. Blount & Garrison, for appellee.

GILL, J.

In this case Roberts sued the railway company for damages to certain land of his, and loss of rents for the year 1903, alleging the loss and damage to be due to overflows caused by the negligence of appellant in obstructing a water course, and failing to put in sufficient culverts to promptly carry off the surplus water in time of heavy rains. The answer was in effect a general denial. A jury trial resulted in a verdict and judgment for appellee for $800, from which defendant has appealed.

For the purposes of this opinion, the following brief statement of the facts is sufficient: From a time prior to the construction of defendant's road until the trial, plaintiff was the owner of a tract of land lying on each side of a small stream called "Bayou Carrisso." A part of the land was low-lying bottom land, subject to brief overflow in time of heavy rains. The testimony of plaintiff tends to show that prior to the construction of the road the water would quickly subside, and the cultivation of the land was not thereby interfered with. When the road was constructed, timber cleared from the right of way was felled into the stream at the point where the road crossed it through plaintiff's land, so that the flow of the water was obstructed. As a result the flow of the water was so seriously obstructed in the spring of 1903, and the overflow held upon the land so long, that plaintiff lost the use of it for that year. There is no testimony that the land was permanently injured. The claim for rent for 1904 was abandoned.

The court submitted to the jury as elements of damage not only the rental value of the land for 1903, but the injury to the land, and this is assigned as error. We think the complaint is meritorious. The obstructions causing the overflows were in their nature temporary and capable of being remedied, and, as the consequent damage was occasional and recurring, plaintiff may sue as often as he suffers injury therefrom, either by reason of the loss of the use of the land or loss of growing crops. But the difference in the market...