Jackson v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 30 January 1904
• Citation: 78 S.W. 724
• Parties: JACKSON v. MISSOURI, K. & T. RY. CO. OF TEXAS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 724

78 S.W. 724

JACKSON v. MISSOURI, K. & T. RY. CO. OF TEXAS.^*

Court of Civil Appeals of Texas.

January 30, 1904.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Action by T. J. Jackson against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for less than claimed, plaintiff appeals. Reversed in part.

Taylor & Coombs, for appellant. Thomas & Rhea, for appellee.

BOOKHOUT, J.

The first assignment of error complains of the action of the trial court in sustaining the exception of defendant that there was a misjoinder of causes of action. The petition alleged, in substance, that the plaintiff owned about 560 acres of land in Dallas county, upon which there was a spring, and from which a spring branch extended; that the defendant railroad company constructed its roadbed over and across said tract of land, and over and across said spring branch, and a short distance from his spring, and failed to construct and maintain sufficient culverts to permit the flow of water accumulating in said branch, and thereby and on account of said embankment and insufficient culverts the flow of water was impeded and caused to back up and overflow said spring, and fill the same with sediment and dirt, so as to entirely stop the flow of said spring. It was alleged that the spring was of great value in furnishing water for the supply of his stock, which it had always done until the construction of said road and embankment, and by the construction thereof he alleged he had been damaged $500. The petition further charged that on the 8th day of August, 1899, the 2d day of October, 1899, and on the 4th day of March, 1901, and on the ____ day of July, 1901, the defendant railroad company, in operating its trains over its road through appellant's land, negligently permitted sparks to escape from its engine, and thereby set fire to combustible matter on the right of way, which spread to and burned appellant's grass upon his grass lands adjoining the right of way, and that the grass roots, turf, and grass sod upon said lands were burned and destroyed, and the said lands so burned over were thereby rendered useless to plaintiff for a period of four years, to his great damage. To these allegations the defendant interposed a special demurrer of misjoinder of causes of action. The exception was sustained, and the plaintiff was required to elect which cause of action he would proceed to trial upon. To this ruling he excepted, and elected to try his action for damages to his land for burning his grass, and destroying his grass roots, sod, and turf on said land.

We are of the opinion that the trial court erred in holding there was a misjoinder of causes of action. It was said by Judge Wheeler, speaking for the court in Carter v. Wallace, 2 Tex. 209, that "at common law the joinder of actions often depends on the form and not the right of action. Thus, trespass cannot be joined with trover, not because the rights asserted in these actions are inconsistent, but because, as it is said, the joinder depends on the form of action, and the judgments are different, that in trespass being in strictness quod capiatur, and that in trover quod sit in misericordia (1 Term, 277; Cooper v. Bissell, 16 Johns. 146), and the objection could be taken advantage of by writ of error. Here no such distinctions exist, and no reason is perceived why distinct injuries, occasioned by a trespass upon lands, and a tortious conversion of personal property, may not be joined in the same action, since the forms of action of the common law are not recognized in our courts, but every right of action may be asserted upon its own particular facts and circumstances, without regard to form. All our actions are in the strictest sense, though not in a technical sense, special actions on the case, being what the actions framed under the statute of Westminster II have been described —actions `whereby the suitor has ready relief, according to the exigency of his business and adapted to the specialty, reason, and equity of his very case.' 3 Com. 51. It may be truly said here, with a slight variation of the language of Lord Hardwicke, 1 East, 226, that wherever the common or our statute law recognizes or creates a legal right for a violation of that right the injured party may bring a special action on his own case, by a petition framed according to the peculiar circumstances of his own particular grievance. In our petition the technical distinctions and artificial boundaries of the common-law actions constitute no element and have no place, but its only requisites are that it shall disclose a right, an injury,...