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

• Court: Texas Supreme Court
• Writing for the Court: Marr
• Citation: Gulf, C. & S. F. Ry. Co. v. Dunman, 19 S.W. 1073, 85 Tex. 176 (Tex. 1892)
• Decision Date: 07 June 1892
• Parties: GULF, C. & S. F. RY. CO. v. DUNMAN.

19 S.W. 1073

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

Supreme Court of Texas.

June 7, 1892.

Commissioners' decision. Section A. Appeal from district court, Coleman county; J. W. TIMMINS, Judge.

Action by R. L. Dunman against the Gulf, Colorado & Santa Fe Railway Company to recover damages for breach of contract and for possession of land. Judgment for plaintiff. Defendant appeals. Reversed.

J. W. Terry, for appellant.

MARR, J.

This case was tried before the court at a former term, and will be found reported in 11 S. W. Rep. 1094. The original petition was filed February 21, 1887. An amended petition, filed October 7, 1889, alleged, in substance, that on February 10, 1886, plaintiff executed a deed whereby plaintiff conveyed to defendant a sufficient quantity of land upon which to erect a pump, boiler, and buiLding for the purpose of supplying defendant's engines with water; and also right of way to lay a pipe from the said pump to the said defendant's railway right of way. The plaintiff conveyed said land and privileges to defendant upon the express condition that said defendant would once in every seven days fill with water a certain tank, then and there owned by the plaintiff, not to exceed 5,000 gallons of water, and upon the failure of the defendant to comply with said condition said land and privileges were to revert to plaintiff. Immediately upon the execution of said deed the defendant erected its pump and other improvements, and has since used the same for the purpose of supplying its engines with water. That the defendant had failed and refused to comply with the conditions requiring it to fill the tank with water once in seven days, to the plaintiff's damage in the sum of $1,000. Plaintiff further alleges that defendant has been in possession of said above-described land, using and enjoying the same for the purposes of its water supply from February 10, 1886, up to the present time; that the reasonable value of the use of said land and privileges is $500 per annum. Plaintiff alleges that defendant is indebted to him for the reasonable rental value of said land, rights, and privileges from February 21, 1887. Defendant pleaded a general denial and plea in reconvention, which was afterwards withdrawn. The case was tried by a jury, and resulted in a verdict and judgment for plaintiff for the sum of $1,329.94, and for a recovery of the land and privileges occupied by the defendant.

The appellant assigns as error the charge of the court upon the measure of damages, and particularly as to the damages from the 1st day of March, 1886, to the 20th day of February, 1887, upon which latter date the plaintiff re-entered in legal contemplation, and put an end to the contract by the institution of suit, as was expressly decided upon in the former appeal. The appellant also submits, in this connection, the following assignment of error, viz.: "The court erred in refusing the special charge of defendant, as follows: `The jury are instructed not to consider any question of damages for breach of the contract, plaintiff not having shown themselves entitled thereto.' You will exclude from your consideration any rents or damages between March 1, 1886, and February 20, 1887." The court charged the jury, in substance, that, if the defendant had failed to fill the tank as required, to find damages in plaintiff's favor for breach of the contract; and that the measure of damages would be the value of the use and occupation of the land and privileges held by the defendant from March 1, 1886, to February 20, 1887, and you will find as damages in his favor whatever said use and occupation is shown by the evidence to be worth, not to exceed the sum of $1,000. That plaintiff was also entitled to recover his land, and, further, the value of the use and occupation of the land and privileges, whatever the evidence shows the same to be worth, from February 20, 1887, up to the present time, not to exceed $1,250. "The privileges held by the defendant," in addition to the use of the land, included the right to obtain water for its engine, etc., out of a pool of water belonging to the plaintiff, and which seems to have afforded the only permanent water accessible to the defendant in that locality. The jury rendered the following verdict: "We, the jury, find for plaintiff, and assess his damages at eight hundred dollars from the 10th day of February, A. D. 1886, to the 20th of February, A. D. 1887, and assess rents at two hundred per year from 20th of February, 1887, up to the present time." The trial occurred below on the 15th day of October, 1889. When this case was before the supreme court upon the first appeal by the present appellant, Judge HENRY, in delivering the opinion, among other things, said: "The institution of this suit was equivalent to such re entry; but, there having been none before, we do not think the plaintiff was entitled to recover for the use and occupation of the land before that date. The court erred in not sustaining defendant's exception to plaintiff's petition, insomuch as it sought a recovery for the use and occupation of the premises before suit brought, and in the charge given on the same subject. The defendant, having agreed with plaintiff that it would, in consideration of his conveyance to it of the land and privileges in controversy, during the time it held them, fill his tank with water every seven days, not to exceed 5,000 gallons, and to surrender the land and privileges when it ceased to do so, must be held liable in this action for the entire obligation. The agreement plainly provides that the filling of the tank should be the compensation paid for the use of the property conveyed, so long as the contract remained in force. Upon the failure of the defendant to comply with the condition subsequent, we know of no reason why plaintiff should not, in pursuance of the terms of the contract, re-enter into the possession of the land, and also recover damages for the failure to fill the tank as agreed up to the date of such re-entry or to the institution of this suit."

We are of the opinion that the charge of the court below upon the measure of damages is not in entire harmony with the views of the supreme court upon that subject which we have just quoted. The charge is materially erroneous, as we conceive. The plaintiff was not entitled to recover "the value of the use and occupation of the land and privileges held by the defendant" under the contract prior to the 20th day of February, 1887. The contract was in force until that date, and the parties, in legal contemplation, were proceeding under it until the plaintiff elected to put an end to it at that time, as he had the right to do, on...