Gulf, C. & S. F. Ry. Co. v. Oakes

• Decision Date: 12 November 1900
• Parties: GULF, C. & S. F. RY. CO. v. OAKES.
• Court: Texas Supreme Court

Page 999

58 S.W. 999

GULF, C. & S. F. RY. CO. v. OAKES.

Supreme Court of Texas.

November 12, 1900.

Certified questions from court of civil appeals of Second supreme judicial district.

Action by W. B. Oakes against the Gulf, Colorado & Santa Fé Railway Company to recover damages to land. From a judgment for plaintiff, defendant appeals to court of civil appeals. Questions certified.

H. D. McDonald and J. W. Terry, for appellant. Allen & Dohoney, for appellee.

WILLIAMS, J.

The certificate of the court of civil appeals presenting the questions which we are called upon to decide is as follows: "This suit was brought by appellee against appellant to recover damages for injuries done the farms of himself and wife by the spreading of Bermuda grass thereon, in consequence of its having been planted by appellant on its right of way where it runs through said farms. The case thus alleged was established by the evidence, and the appellee recovered a verdict and judgment for $200, from which appeal is prosecuted. The court instructed the jury that if appellant planted Bermuda grass upon its right of way where the same passes through said farms, and if said grass, `by its nature, was calculated and liable to spread to and upon adjacent lands, and damage and injure the same,' and if said grass did spread to and upon the lands of appellee and his wife, and if it injured and damaged said lands, `for the purposes for which the same was then being used,' to find for appellee; and refused an instruction to find for appellant, and also an instruction requested by appellant as follows: `You are instructed that defendant railroad company had the right to improve its right of way in any manner it saw fit that would tend to make the roadbed safer or better, but in doing this defendant would be required to exercise such care and prudence to avoid injury to plaintiff as persons of ordinary prudence would commonly exercise under similar circumstances. Hence, if you believe from the evidence that the planting of the Bermuda grass by the defendant on its right of way through the farm of plaintiff and his wife tended to improve its roadbed, and that planting the same was such an act as a person of ordinary prudence would commonly do under like circumstances, then plaintiff is not entitled to recover, even though his and his wife's farms may have been injured by the grass spreading thereon from the right of way.' To the charge so given, and to the refusal of the requested instructions, the errors are assigned. We deem it advisable to certify to your honors for decision the questions so raised,—whether or not appellant was liable to appellee for the injury done to the lands through which appellants railroad runs in consequence of the spreading of Bermuda grass thereon from appellant's right of way, or whether it was a good defense to the action that appellant had acted as a person of ordinary prudence would have done under the same circumstances in planting the grass upon its right of way."

The question to be decided is whether or not from the bare facts that appellant planted the grass upon its right of way, and that it spread to and injured adjacent farms of appellee, there results a liability for such injury on the part of appellant. These are the only facts stated for our consideration. It is perhaps proper for the court to know judicially that this grass is much used and is valuable for pasturage, for the ornamentation of yards and lawns, and for the preservation of embankments, and that for the latter purpose it is often employed by railway companies in this state. In a general way, we may know, too, that, by sending out roots and runners into adjacent soil, by the washing of water and in other ways, it spreads and propagates itself rapidly in some situations and kinds of soil, more slowly in others, and that it is often difficult to prevent or arrest this process, or to cultivate other crops upon land where it has once become seated. But further than this we cannot go in taking cognizance of any fact affecting the questions. The act for which appellant is sought to be made liable is therefore the use upon its own land of a thing which is useful for some purposes, and is not shown to have been employed by it for an improper purpose. Does the owner of land who uses it for the growth of useful grass of this kind thereby become absolutely liable for damage done to another by its spreading upon his land? If so, the facts stated show a liability on the part of appellant. But if the liability is not thus absolute, but depends upon peculiar conditions existing where the grass is planted, the plaintiff seeking to establish it would have the burden of showing the facts out of which it would arise. The law, in the abstract, has been sometimes stated broadly enough to establish a liability of the kind first mentioned. Thus, in the much-quoted case of Fletcher v. Rylands, L. R. 1 Exch. 265, Blackburn, J., says: "The question of law, therefore, arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless while it remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbors; but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the court of exchequer have thought, merely a duty to take all reasonable and prudent precautions, in order to keep it in, but no more. * * * We think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or perhaps that the escape was the consequence of vis major or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient." The act which the defendant in that case had done was to collect upon his land a large quantity of water in a reservoir, which, because of defective construction, broke, and discharged its contents into plaintiff's mines. It has often been pointed out, especially by American courts and writers commenting on this decision, that the facts of the case established a liability, because of negligence in the construction of the reservoir; but the court expressly waived the determination of any question of negligence, and put its decision on the broad proposition that the liability resulted absolutely from the fact that injury had been inflicted upon another by the escape of a thing brought by the defendant upon his land, which was likely to do mischief if it escaped, and which he was bound, at his peril, to keep in. This decision was affirmed in the house of lords, and the proposition above quoted was expressly approved, although the judges delivering opinions used language which might otherwise be understood to be a modification of it. L. R. 3 H. L. 330.

There have been subsequent decisions in England which some authorities regard as relaxing the rule in Fletcher v. Rylands, but it is unnecessary to refer especially to them. Cooley, Torts, pp. 677-680. The rule laid down was largely deduced from prior rulings, establishing absolute liability for damages caused by fires kindled on one's premises, and spreading to those of another; by injuries inflicted by one, in his lawful self-defense against another, upon an innocent bystander; and by animals straying from the lands of their owners upon those of others. The law has become settled, in this country at least, that there is no liability in the two first instances without negligence on the part of the person permitting the fire to spread or inflicting the injury, and, in case of animals, the law is entirely different in this and other states. Agency Co. v. McClelland, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105, s. c. 89 Tex. 483, 34 S. W. 98, 35 S. W. 474.

By making the liability absolute, the rule in Fletcher v. Rylands, taken literally, imposes an unqualified restriction upon the right of an owner of land to put it to a use lawful in itself, and this is the aspect in which it has the most direct bearing upon the question before us. It so applies the maxim, "Sic utere tuo," etc., as to make the owner of land liable, in all cases, for loss or damage suffered by another in consequence of the escape of anything brought by the owner upon his land, which, in escaping, is likely to do mischief. Of course, the broad proposition was laid...