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

• Citation: 79 S.W. 852
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. CALKINS.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 05 March 1904
• Court: Texas Court of Appeals

79 S.W. 852

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

Court of Civil Appeals of Texas.

March 5, 1904.

Appeal from District Court, Hunt County; H. C. Conner, Judge.

Action by E. R. Calkins against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

T. S. Miller and Perkins, Craddock & Wall, for appellant. Looney & Clark, for appellee.

BOOKHOUT, J.

On the 7th day of August, 1902, appellee instituted suit against appellant in the district court of Hunt county, Tex., to recover damages to his premises, situated just outside the corporate limits of the city of Greenville, on account of the construction by appellant of its yards, and the operating of its locomotives therein, near said premises. On the 31st day of March, 1903, the case was tried before a jury, and resulted in a verdict and judgment in favor of appellee for the sum of $700. Defendant appealed.

In 1894 appellee purchased from W. M. Arnold a one-half acre of land in W. M. Arnold's Addition to the city of Greenville, described as follows: "Beginning at a point where the center line of College boulevard intersects the south boundary line of the M. K. & T. Railway right of way; thence south 90 feet; thence west 317 feet to the M. K. & T. right of way; thence northeasterly with the right of way to the north boundary of the M. M. Knight survey; thence east 120 feet to the place of beginning." On this property he erected a residence and outhouses, since which time he has resided thereon with his family. Later he purchased from said Arnold another lot, south of and adjoining the first. On the north side of the lot first purchased by appellee there was a public road, running east and west, the east end of which connected with streets leading to and through the city of Greenville, and the west end crossed appellant's Dallas Branch, and was a public crossing, and connected with the public county road. The appellant at the time of appellee's purchase owned 6¾ acres of land north and northwest of the lot first purchased by appellee. Upon and across this land appellant had constructed its railroad, and about 100 yards northwest of appellee's lot the railroad branched; one branch running west, to McKinney, and another, known as its "Dallas Branch," leading off in a southwesterly direction, and curving around the northwest side of the lot of appellee. Just north of the Dallas Branch there was a side track. Prior to 1901 the appellant had maintained its switchyards about a mile away, and near its depot. In 1901 it began the erection of new yards on the 6¾ acres of land purchased by it from W. M. Arnold. When appellee purchased his first lot, the corners and boundaries were pointed out to him, and he constructed his fences on the lines so pointed out. The defendant, in building its new yards, excavated the earth away, and cut down the grade from 2 to 6 feet along the north side of plaintiff's property, and laid down 10 tracks, and is preparing for the construction of two more. It moved its main line from where it formerly existed, from 50 to 75 feet distant from plaintiff's premises, to a distance of from 4 to 10 feet therefrom. That defendant excavated and took a strip of land off of the north side of plaintiff's property, 12 feet wide at the south or base, and coming to a point 80 feet from his northeast corner; being a strip 237 feet long, 12 feet at the base, and gradually coming to a point. That defendant uses its new yards for switching cars, holding cars thereon, and making up trains. Three switching crews are at work and ply thereon day and night. That the noise made by these operations is plainly heard at plaintiff's house, and wakes him up at times. That the dust, smoke, and disagreeable odors from the engines fill his house, and compel him to keep his doors shut all the time. That the cinders fall on his house and gallery, and get into his cistern. That all of this is very disagreeable, and bothers plaintiff a good deal. That, in switching, the vibrations from the engine cause the house to shake and tremble, and it is this noise that disturbs most. The defendant, in constructing its new yards, excavated and destroyed the public highway running along the north side of plaintiff's property. Prior to the destruction of the public road, plaintiff had two double gates on the north side of his lot, leading into his premises from the road, but now the lot is wholly inaccessible from these points, the road being destroyed.

Appellant assigns error to the fourth paragraph of the charge, which reads:

"Now, if you believe from the evidence that said road running along the north of plaintiff's lot was a public highway, as above explained; and if you believe that plaintiff owned the land described in his petition, and that about one year prior to the institution of this suit the defendant began the building and construction of its yards at and near plaintiff's land; and if you believe that, in the work of building said yards, the defendant made excavations, laid additional tracks, and obstructed and rendered unfit for use said road running along on the north side of plaintiff's lot; and if you believe that the use by the defendant of its yards results in the operation of cars and locomotives on said tracks for switching purposes, from which noise, smoke, cinders, and gas escape, and you...