International & G. N. R. Co. v. Searight

• Decision Date: 07 November 1894
• Parties: INTERNATIONAL & G. N. R. CO. v. SEARIGHT.
• Court: Texas Court of Appeals

Page 39

28 S.W. 39

INTERNATIONAL & G. N. R. CO. v. SEARIGHT.

Court of Civil Appeals of Texas.

November 7, 1894.

Appeal from district court, Williamson county; F. G. Morris, Judge.

Action by W. F. Searight against the International & Great Northern Railroad Company for the destruction of grass by fire from defendant's engines, and for injury to live stock. Judgment for plaintiff, and defendant appeals. Affirmed.

Suit by the appellee against the appellant railway company for damages on account of burning grass on land near Hutto, held by lease alleged to entitle him to use of the same for pasturage from March, 1891, to June 1, 1892, and a conditional right thereafter for one year. Damages are claimed for burning grass alleged to accrue as follows:

                Sept. 25, 1891. 95 acres grass, at
                 $4 per acre.........................  $  380 00
                Oct. 7, 1891. 280 acres grass, at $4
                 per acre............................   1,120 00
                Oct. 18, 1891. 100 acres grass, at $4
                 per acre............................     400 00
                                                       _________
                                                       $1,900 00
                

Damages are also claimed for killing certain cattle and one horse, estimated to be worth $76. Verdict and judgment for plaintiff for $1,000 for grass burned, and $76 for cattle killed.

Plaintiff was occupying the land under a verbal lease from Judge Cochran, representing the Talbot heirs, and from Doc. Sauls, claimant, the title being in litigation between them, the lease running from March, 1891, until June, 1892, and indefinitely thereafter, until the litigation should be determined by the supreme court of the state. The agreement was that Judge Cochran should draft a lease, but it was not done. The land so leased was about 900 acres, for a certain amount per acre per year, rent to be paid upon final decision of the court in the litigation. Plaintiff was a cattle dealer and feeder, and, at the time of the burns, had over 100 head of cattle and some horses in the pasture. The land was heavily coated with tall grass at the time of the burns, which occurred as alleged, and destroyed grass as alleged. The grass was valuable, especially to a feeder (as plaintiff was), to feed to cattle with cotton seed and other provender. The land was inclosed in a pasture, and defendant's road ran through it. The railroad was fenced through the pasture, except at a private crossing, near which the cattle and horses were killed, near the track. They were evidently killed by passing trains. The testimony does not show that there was any cattle guard or anything to prevent stock from going on the right of way inside the fence at the crossing. The evidence shows that the stock were killed as alleged, and were worth the amount found by the jury; but there is no testimony showing the circumstances of the killing, or how it was done, or bearing on the question of negligence, except that the place where the horses and cattle were found dead was open, and stock could be seen along the road for a mile or more in each direction towards the crossing. There was no market value for the grass destroyed, but the real value for feed, as designed by plaintiff, was sufficient to warrant the verdict.

Fisher & Townes, for appellant. West & Cochran, for appellee.

COLLARD, J. (after stating the facts).

Appellant's first assignment of error is that appellee could not recover for the value of the grass destroyed, because he was occupying the land under a verbal contract for a term of more than one year. We think the appellant cannot complain. It was a stranger to the contract, and it has been held in this state that, as such, it could not set up such a defense. Railway Co. v. Settegast, 79 Tex. 257, 15 S. W. 228.

Appellant contends that the court erred in permitting plaintiff and the witnesses Blanton and Highsmith, over objections, to give their opinions as to the value of the grass for feeding in connection with cotton seed. It was in proof that there was no market value for the grass. Blanton testified that he was a stock raiser and farmer. Knew plaintiff's pasture in October, 1891. "It was covered with a coat of fine grass, thick and tall. Grass in that vicinity had a value for grazing and feeding. Grass is used for feeding along with cotton seed, and is used for roughness. Searight's grass was as good as there was in the country. The pasture had not been pastured or grazed over for a year or two. Don't know the market value of grass for grazing and feeding in that vicinity. Don't know that it had a market value in the vicinity of Hutto in October, 1891. I have lived in Hutto since 1879, and have owned a farm near there for a number of years before I moved to town, and now own it, and think I would know its market value if it had any. I don't know the rental value per acre per annum for grazing purposes. Know of only one instance where land has been rented by the acre for grazing. I am a beef feeder, and have been for a number of years, having fed on my place near Hutto, and think I know the value of grass for feeding. I think such grass as that, for such purpose, would be worth $2 per acre if used in the winter for feeding in connection with cotton seed." Highsmith testified that he was a stock raiser; that he knew plaintiff's pasture in October, 1891; that it had not been pastured for several years; and that it had a fine coat of grass on it. "I don't know the market value or rental value of grass for grazing and feeding purposes. I have been living in that community for 25 or 26 years, and think I would know the market value or rental value if it had any." He placed the value of the grass at $2.50 or $3 per acre when designed to use in winter in connection with cotton seed. Plaintiff was a beef feeder; knew the pasture and its value; stated that the grass by the acre had no market value, but placed its value at four dollars per acre. There being no market value, it was competent to establish the intrinsic value of the grass, as was done, and it was proper to do this by the opinion of persons familiar with the subject, derived from personal knowledge of the facts and the thing to be valued. Railway Co. v. Vancil, 2 Tex. Civ. App. 427, 21 S. W. 303; Railway Co. v. Ruby, 80 Tex. 175, 15 S. W. 1040; Railway Co. v. Hogsett, 67 Tex. 685, 4 S. W. 365; Railway Co. v. Pickens, 3 Willson, Civ. Cas. Ct. App. § 398; Railway Co. v. Maddox, 75 Tex. 305, 12 S. W. 815. There was no error in admitting the testimony.

We cannot say that the court erred in refusing to allow defendant to ask plaintiff what rental per annum he paid for the grass, nor in refusing to allow defendant's counsel to ask witness Blanton what rental per acre he paid for a tract of grass land adjoining his place rented for grazing purposes. The bill of exception does not show what the evidence of either of the witnesses would have been, and in such case the appellate court will not revise the ruling of the lower court. Railway Co. v. Greenwood (Tex. Civ. App.) 21 S. W 559; Moss v. Cameron, 66 Tex. 412, 1 S. W. 177. There is a higher ground upon which we think the testimony was inadmissible. It was immaterial upon the issue of real value of the grass destroyed. Plaintiff may have obtained the use of the premises for a mere nominal consideration; it may be, for attention to the land, and keeping off intruders. Such evidence would not tend to prove the value of the grass. The parties may have made a good trade, or a bad one, and in either event the consideration paid could not affect the rights of plaintiff or defendant. The testimony was not sought to prove that there was a market value, but to show the value. We think it would not tend to show value.

Appellant assigns as error the refusal of the court to give special requested instruction as follows: "To entitle plaintiff to recover in this suit for grass burnt, he must affirmatively show by evidence (1) that, at the times and places named in his petition, his grass was burnt; (2) that it was fired from sparks or cinders or coals emitted from or dropped by an engine or...