Owens v. Missouri Pac. Ry. Co.

• Decision Date: 22 April 1887
• Parties: OWENS v. MISSOURI PAC. RY. CO.
• Court: Texas Supreme Court

4 S.W. 593

OWENS v. MISSOURI PAC. RY. CO.

Supreme Court of Texas.

April 22, 1887.

Appeal from McLennan county.

Clark & Dyer and Herring & Kelley, for appellant. Foster & Wilkinson, for appellee.

GAINES, J.

This suit was brought by appellant against appellee to recover damages to appellant's land, alleged to have been caused by an embankment erected by appellee. Appellant obtained in the court below a verdict and judgment for $100; and because, as he claims, the damages are insufficient, he now appeals to this court. That after the construction of appellee's road and embankment the land of appellant was overflown and greatly depreciated in value there can be no doubt. But the stress of the case was upon the issue whether the continuous overflow which was proved, was the result of the embankment, or was caused by an unusual succession of heavy rains. Incident to this was the further question: If the overflow was affected at all by the embankment, to what extent was it increased by that obstruction? A large number of witnesses were examined upon these questions by both parties and the evidence is conflicting. It was peculiarly within the province of the jury to weigh the evidence, under these circumstances, and to determine the issues. Their verdict cannot be disturbed unless for errors in the proceedings of the court.

We will therefore consider the assignments in order. The first and second are presented together, and are as follows: "(1) The court erred in the fifth paragraph of the charge to the jury, wherein the measure of damages is stated to be `the difference, if any, between the value of plaintiff's land before the construction of said embankment and the value of the same immediately after said damage, if any, was caused by said defendant.' (2) The court erred in not giving to the jury the special charge as to the measure of damages, which would have corrected the error complained of in the preceding assignment, which charge was as follows: `If the jury should find, under charges heretofore given, that the plaintiff has suffered damages by the erection and maintenance of said railway embankment for which he would otherwise be entitled to recover of the Missouri Pacific Railway Company, under the law and evidence, by reason of said embankment being the original cause of the injury, the fact, if it be a fact, that in the present condition of the pond, and the ground adjacent thereto, the removal of the embankment originally erected would not cause the water to flow off, cannot diminish, impair, or defeat the right of the plaintiff to recover. If the jury find for the plaintiff, they will find for him such damages as have been caused by the defendant to this time, and the measure of damages is the difference in value of the land at the erection of the embankment and its present value, in the absence of any evidence that the value of said land has been changed or diminished by other causes."

It is to be noted that the second assignment is not sustained by the record. What is called therein the special charge was embraced in two separate instructions asked by the appellant. The record shows that so much of the instruction quoted as is embraced in the first sentence was asked as a separate charge, and was given. That which is embraced in the second sentence was separately requested also, but was refused. Ordinarily the measure of damages resulting from overflows caused by the construction of embankments is the loss resulting from each successive flood; but in this case it was alleged that the value of the land was permanently impaired by the destruction of a valuable pasture, and the damages claimed were the deterioration in the price of the property. So far as the record discloses, no question was made upon either side as to this being the proper measure of plaintiff's recovery, if he were entitled to recover at all. The appellant's proposition, under the assignment, is that the portion of the charge complained of in the first assignment "took from the jury the consideration of damage that may have resulted to plaintiff by reason of debris being deposited in the water-ways, outlets, and sluices of the pond, while...