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

• Decision Date: 21 December 1904
• Citation: 84 S.W. 275
• Parties: GULF, C. & S. F. RY. CO. v. PROVO.
• Court: Texas Court of Appeals

84 S.W. 275

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

Court of Civil Appeals of Texas.

December 21, 1904.

Appeal from District Court, Milam County; J. C. Scott, Judge.

Action by M. L. Provo against the Gulf, Colorado & Santa Fé Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. W. Terry and A. H. Culwell, for appellant. T. S. Henderson and Freeman & Morrison, for appellee.

FISHER, C. J.

This is a suit by appellee to recover damages to his land and crops, alleged to have been sustained by reason of the negligent construction and maintenance of an embankment near and alongside of the appellee's land by the railway company, and by reason of the failure to leave enough openings and sluiceways, the land was caused to overflow, and the crops were injured and destroyed. The case was tried before the court without a jury, and judgment rendered in appellee's favor for $620.

The findings of fact and conclusions of law of the trial court, which are substantially adopted by this court, are as follows:

"Findings of Fact.

"(1) On the 30th day of July, 1902, and continuously thereafter up to the time of the trial of this cause, the defendant, a railway corporation duly incorporated under the laws of the state of Texas, owned and operated a line of railway through the county of Milam, in said state, crossing Little river and the valley thereof in said county at a point about two miles below or south of Cameron. At the point where the railway crosses said valley the said valley or bottom is about one and one-fourth miles in width.

"(2) Said Little river drains the surface or rain water from a large territory, embracing a number of counties lying above or up the river from said crossing, and in seasons of high water said river is and has been for a long period prior to the construction of railway accustomed to overflow its banks, and the overflow waters accustomed to spread and flow over said valley in a smooth and uniform flow, without hurt or injury to the lands over which it flowed or the crops growing thereon.

"(3) On the date mentioned, and for some time prior thereto, and continuously thereafter up to the time of the trial, defendant's said railway was constructed and maintained across said river and valley at said point in the following manner: The roadbed of said railway for a long distance across said valley was and is a solid embankment of earth, stone, and other materials, without culverts, openings, or sluiceways for the passage of water, except for a space of about 1,000 feet, beginning at a point about 780 feet from the north line or foothill of said valley, and another space of 200 feet at the channel or stream of the river. Said space of two hundred feet is left clear and unobstructed for the flow of water, but the space of 1,000 feet is obstructed by wooden benches or trestles placed therein throughout the entire distance, said benches being about three feet apart, and leaving spaces of about that width through said opening through which the water passing down said valley was permitted to flow in times of overflow. Said embankment was constructed and maintained to a height to prevent the water from passing over the same, and the only exit or sluiceway provided for the water passing down said valley in seasons of overflow was through the openings above described; and said embankment, as constructed, dammed and arrested the flow of the water through said valley so as to compel such overflow water to discharge through said spaces described above.

"(4) The spaces or sluiceways provided for the passage of water through said embankment were and are entirely inadequate and insufficient for the passage and flow of...