Isbell v. Lennox

• Decision Date: 08 July 1920
• Docket Number: (No. 2302.)
• Citation: 224 S.W. 524
• Parties: ISBELL et al. v. LENNOX et al.
• Court: Texas Court of Appeals

224 S.W. 524

ISBELL et al. v. LENNOX et al.

(No. 2302.)

Court of Civil Appeals of Texas. Texarkana.

July 8, 1920.

Rehearing Denied October 7, 1920.

Appeal from District Court, Red River County; J. A. Ward, Special Judge.

Action by G. W. Isbell and others against H. H. Lennox and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

This was a suit by appellants against appellees for damages they claimed they had suffered as a result, they charged, of the act of appellees in so diverting water from its natural course on their land as to cause same to flow upon and injure appellants' land. In their petition appellants alleged that the diversion was of surface water and of the waters of Boggy creek, a tributary of Lankford creek, by means of a dam and levee appellees constructed on their land to a point thereon near land adjoining it on the south which belonged to appellants. In their answer appellees admitted they constructed a dam across a prong of Boggy creek on their land, but denied that the effect of same and of the ditch they dug and levee they constructed was to divert the waters of said creek and water falling on their land so as to cause same to overflow appellants' land different from the way it had always overflowed same. Appellees alleged that appellants' land was the natural way for water falling on their (appellees') land and the overflow waters of Lankford, Boggy, and Pickett creeks to escape.

At the trial appellants adduced testimony tending to support the allegations in their petition, and appellees adduced testimony tending to support the allegations in their answer.

The appeal is from a judgment in appellees' favor in conformity to the verdict of a jury.

J. Q. Mahaffey, of Texarkana, and T. T. Thompson, of Clarksville, for appellants.

A. P. Parks, of Paris, and Lennox & Lennox, of Clarksville, for appellees.

WILLSON, C. J. (after stating the facts as above).

It appears from the record that appellants objected, but did not state the grounds of their objection, to certain instructions the trial court gave to the jury. A general objection is not a compliance with the requirement of the statute (article 1971, Vernon's Sayles' Civ. St. 1914) that objections a party has to instructions shall be presented to the court before such instructions are read to the jury. The plain purpose of the statute, said Chief Justice Phillips, in Walker v. Haley (Sup.) 214 S. W. 295—

"is to provide the court, in advance, with the objections to which the charge is deemed subject, so as to afford opportunity for its correction. * * * It is, in a word, to secure, as far as possible, the preparation and submission of a correct charge to the jury."

It is obvious that an objection which fails to particularly point out supposed defects in a charge would be of little, if any, aid toward the accomplishment of such purpose, and hence that a general objection was not the kind of an objection the members of the Legislature had in mind when they enacted the statute. It follows that appellants are not in a position different from that they would have been in had they not objected to the charge at all, and that, not only are they not entitled to have the assignments in their brief based on instructions given considered, but this court is without right to consider same. Waterman Lumber Co. v. Beatty, 218 S. W. 363; Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184; Witt v. Young, 194 S. W. 1019; City of Ft. Worth v. Ashley, 197 S. W. 307; Ochoa v. Edwards, 189 S. W. 1022; Schaff v. Scoggin, 202 S. W. 758; Hendrick v. Lumber Co., 200 S. W. 171; Railway Co. v. Miller, 201 S. W. 1049.

The other assignments in appellants' brief are predicated on the action of the...