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

• Citation: 11 S.W. 336
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> McGOWAN.
• Decision Date: 19 March 1889
• Court: Texas Supreme Court

11 S.W. 336

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

McGOWAN.

Supreme Court of Texas.

March 19, 1889.

Appeal from district court, Fort Bend county.

Action by S. McGowan against the Gulf, Colorado & Santa Fe Railway Company. Judgment for plaintiff, and defendant appeals. For opinion on former appeal, see 8 S. W. Rep. 57.

J. W. Terry, for appellant. W. B. Denson, for appellee.

HENRY, J.

Appellee filed his original petition on March 30, 1886, to recover from appellant damages for destruction of crops in the years 1884 and 1885, alleged to be caused by an overflow of the Brazos river, produced by the negligent construction of defendant's railroad. The original petition charged that the crops destroyed belonged to, and were cultivated by, plaintiff and his tenant, George Moore, and that he had purchased and received a transfer from said Moore of his interest in the crops and his claim for damages. In the original petition the crops destroyed in 1884 are described as growing on 112 acres in Fort Bend county, on part of what is known as the "Yandel Farris Place," it being part of the old Thompson place near what is called "Thompson's Switch" on the Gulf, Colorado & Santa Fe Railway, to the west of and adjacent to the point where said railway crossed the Brazos river, in Fort Bend county, and situated to the south and west of said river, and between it on the north and the road-bed of said railway on the south; the western line of said lands between the river above and the road-bed below being about one mile, and said river forming the northern and eastern boundary of said land. The original petition gives substantially the same description of the lands cultivated and overflowed in 1885. On the 19th June, 1886, plaintiff filed an amended original petition, in which substantially the same description of the overflowed lands and crops were given as in the original petition, except that the original petition alleged that the whole was part of the Yandel Ferris place, while the amended petition charged that part of it was known as the "Yandel Ferris Place" and part as the "Brice Farm." On a former appeal of the case (8 S. W. Rep. 57) it was reversed on account of variance between the allegation that all of the crops were owned and cultivated by plaintiff and his tenant, George Moore, and the evidence showing that George Moore was only plaintiff's tenant of part of the land, and that the crops on the other part were exclusively owned and cultivated by plaintiff.

In the district court plaintiff filed his second amended original petition, changing his allegations so as to show how much land was cultivated each year by himself in connection with his tenant, and how much exclusively by himself. In other respects the lands and the crops are described substantially as in the first amended petition. There was a verdict and judgment for plaintiff, from which the defendant appeals, and assigns as error: "First. The court erred in overruling the defendant's first special exception to the plaintiff's second amended original petition, said exception being in substance, as follows: `For special exception to said petition defendant says that it appears therefrom that the plaintiff's cause of action as to all of the crops described in the petition as having been overflowed on or about May 26, 1884, except the forty acres of corn and ten acres of cotton in which George Moore is alleged to have been interested with the plaintiff, is barred by the statute of limitations; it appearing from the second amended original petition, in connection with the original petition and the first amended original petition, that this suit as to such crops was not instituted in the two years after the cause of action accrued, and not till long after the expiration of said two years; and the defendant here pleads the statute of limitations as to all of such crops of the year 1884, with the exception above stated.' Second. The court erred in overruling the second special exception of the defendant to the plaintiff's second amended original petition, which exception is in substance as follows: `For further and special exception to said second amended original petition defendant says that it appears therefrom that the plaintiff's cause of action as to all crops described in said petition as having been overflowed on or about June 10, 1885, is barred by the statute of limitations, except as to the forty acres of corn and thirty acres of cotton in which George Moore is alleged to have been interested with plaintiff; it appearing from said second amended original petition, in connection with the original petition and the...