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

• Decision Date: 26 January 1892
• Citation: 18 S.W. 441
• Parties: GULF, C. & S. F. RY. CO. v. HEPNER.
• Court: Texas Supreme Court

18 S.W. 441

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

Supreme Court of Texas.

January 26, 1892.

Commissioners' decision. Section B. Appeal from district court, Dallas county.

Action by Robert Hepner against the Gulf, Colorado & Santa Fe Railway Company to recover damages for a flowage of lands. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

Leake, Shepard & Miller, for appellant. Coombes & Gano, for appellee.

GARRETT, P. J.

Robert Hepner, as plaintiff, brought this suit in the district court of Dallas county May 4, 1886, against the Gulf, Colorado & Santa Fe Railway Company as defendant, to recover damages for the overflow of a tract of six acres of land, belonging to the plaintiff, situated in the Trinity River bottom, about one mile west of the city of Dallas. He alleged that the overflow was caused by an embankment made by the defendant across the bottom land of the river below plaintiff's tract in the construction of its railway across the river, which embankment had insufficient outlets for the flow of the water, and in the spring of 1884 and 1885 caused the plaintiff's land to be overflowed, resulting in the destruction of his crops, fruit trees, etc., and in permanent injury to the value of the land. The case was tried March 8, 1888, and resulted in a verdict and judgment for the plaintiff, from which the defendant has appealed.

Appellant complains of error in the court below in the admission of evidence, in the charge of the court as to the measure of damages, and the refusal of the court to give the special instructions requested by defendant as to the proper measure of damages, and that the verdict is contrary to the evidence as to the cause of the overflow. Plaintiff's tract of land is about one mile west of the city of Dallas, across the Trinity river from the city, and is in the second bottom of the river, as distinguished from the first or low bottom, which is about three-fourths of a mile wide, and is often overflowed by the water from the river; but plaintiff's land was not subject to overflow. Defendant constructed its railway across the river about three miles below plaintiff's tract of land, and in doing so built a high embankment across the bottom. During the overflow of 1885 a large portion of this embankment was washed away by the flood, and was rebuilt by the company with much larger openings for the passage of the water. There had been no overflow of the land since 1885 up to the time of the trial.

Witnesses for the plaintiff, A. P. Langston, F. Shuback, P. S. Browder, and himself, were permitted to testify, over the objection of the defendant, that in their opinion the overflow of the land was caused by the embankment of defendant across Trinity river. This testimony was objected to, because the witnesses were not shown to be in possession of such facts with reference to the width of the river, the depth of the water, the flow therein, the height, length, and general character of the obstruction, and the number and size of the outlets for the water therein, as would furnish sufficient foundation for their opinion. Hepner showed that he had bought his land in 1883. He testified that he had never seen any overflow in the river before 1884, except from the east side, and only two on the west, — those of 1884 and 1885; that he was pretty well acquainted with the location of the country between his land and the embankment on the east side of the river, but on the west had examined the embankment about two or three weeks before the trial, and looked at the openings, and had been up and down the river occasionally. He had passed over the embankment once, either in 1882 or 1883, but had not been down to it again until just before the trial. The embankment was, in his judgment, about three-fourths of a mile long. He had never measured the height of the embankment, and did not measure the width of the bridge and trestle openings. Did not know how wide the river was at the bank, nor across where his land was. He was not at the crossing during either overflow, and did not see the high-water mark on the bank or at the bridge. Langston had never seen any overflow, or noticed the ground on the west side, until 1885, and had never seen one on the west side except one of 1885, but had seen a good many overflows from the east. He made no investigation at the time of the overflow as to its cause, and did not examine defendant's embankment. He had never seen it but once, which was a considerable time afterwards. Had been up and down the river bottom, and had known the river 14 or 15 years, but had been acquainted with the west side only about 3 years at the time of the trial. Supposed the embankment was about three-quarters of a mile in length. Thought it stood solid on the west side of the river, with the exception of one small opening, about large enough for a wagon to pass through. Supposed that on the east side the company had left considerably more space than there was at the time of the overflow. The space was originally several hundred yards on that side. He did not know how far it was down to the bridge. Did not examine high-water marks below the bridge. Did not take into consideration the width of the bottom in estimating what caused the overflow, and did not know its width at the bridge. Could not say how far a five-foot dam would back the water up stream, and did not know what the fall was from his and plaintiff's lands down to the embankment. Mr. Weeks, an engineer, ran some levels and made some surveys, but witness did not go with him all the way. Did not notice the high-water mark on the trees. Had paid no attention to any old high-water marks. Shuback said he was familiar with the general course of the river. He was not down on the river during the overflow, but stood on the Texas & Pacific Railway dump, and looked at it. This was up the river from plaintiff's land. Browder was never at the embankment until after the overflow. Supposed it...