Sabine & E. Tex. R'Y Co. v. Johnson

• Decision Date: 29 January 1886
• Docket Number: Case No. 2181.
• Citation: 65 Tex. 389
• Court: Texas Supreme Court
• Parties: SABINE & EAST TEXAS R'Y CO. v. B. J. JOHNSON.

65 Tex. 389

SABINE & EAST TEXAS R'Y CO.

v.B. J. JOHNSON.

Case No. 2181.

Supreme Court of Texas.

Jan. 29, 1886.

APPEAL from Jefferson. Tried below before the Hon. W. H. Ford.

This is a suit by Ben J. Johnson against the Sabine and East Texas Railway company, for damages for injury to land, fruit trees, growing crops, grass and live stock, from overflow caused by the negligent and improper construction of defendant's road.

The petition, which was lengthy, alleged, in substance, that the plaintiff was, and for more than ten years last past had been, the owner of a certain tract of land (a description of which is set forth in the petition), containing one hundred and twenty acres, and situated in Jefferson county, about two miles westwardly from Sabine pass; that Sabine lake and Sabine pass are both east of his land, and the shore line of the lake and the pass, from the mouth of Taylor's bayou, which flows into the lake, to the town of Sabine Pass, runs nearly north and south; that Taylor's bayou, the course of which is from west to east, and which discharges its waters into Sabine lake, about ten miles north of the town of Sabine Pass, is the principal means of drainage, after rains, of that portion of Jefferson county, and also portions of Liberty and Chambers counties; that the country lying south of Taylor's bayou, from its mouth westwardly, for a distance of fifteen miles, is generally low and flat, with a slight declension eastwardly and southeastwardly, towards Sabine lake and Sabine pass, sufficient for proper drainage; that frequently, after heavy rains, which are usual in that section of country, at different seasons of the year, Taylor's bayou overflows its banks on the south side thereof, and this water spreads over the whole surface of the country contiguous thereto, and, in connection with the surface water flowing from the southwest after a rain storm, runs eastwardly and southeastwardly, into Sabine lake and Sabine pass, over the banks thereof, which are low and flat from the mouth of the bayou to the town of Sabine Pass; that such had been the natural course of the drainage of that section of country from the earliest times, without material injury to grass, crops or lands, prior to the construction of the defendant's road.

The petition further alleges that, in the year 1882, the defendant constructed a railroad, which has ever since been operating, from the city of Beaumont to the town of Sabine Pass, in Jefferson county, a distance of thirty miles, between Taylor's bayou and the latter place, and, in the construction thereof, built an embankment of earth, about ten miles in length, for its road-bed, leaving but two openings therein for the purpose of drainage, each about one hundred feet wide; that this embankment, from the point where the defendant's railroad crosses the bayou to the town of Sabine Pass, is west of Sabine lake and Sabine pass and near the shore line of the same; that by reason of the location and manner of construction of this embankment, and the great elevation or height thereof, it obstructs the flow of the water from Taylor's bayou, the surface water on the lands west of the roadbed and the drainage from the southwest, as before alleged, into Sabine lake and Sabine pass, and prevents such waters from following their natural course to and through their natural outlet, damming them to the depth of three feet and causing them to flow back over the lands west of the road-bed for a distance of ten miles and more, and to submerge and to stand upon the same, after every heavy rain, from one to ten weeks, whereas, before the construction of the defendant's road, the waters from the overflows and rains, when of same amount, would leave the lands clear in from one to five days; that plaintiff's land was and is subject to overflow from the high waters of Taylor's bayou and from heavy rains, as before alleged, being within the scope of country south of the bayou and west of Sabine lake and Sabine Pass, and in proximity to those bodies of water, as before described; that the overflows that occurred previous to the construction of defendant's road never at any time did material damage to plaintiff's land or grass, fruit trees or crops growing thereon; but that since the construction of defendant's road, to-wit, on January 1, 1884, and on divers days subsequently thereto and before the commencement of this suit, his own, and adjacent lands, upon which, with the consent of the owners, express or implied, his cattle and hogs were accustomed to graze, as also the whole surrounding country, were submerged by water to the depth of two feet and more, for a period of about eight weeks, as each overflow occurred, caused by the negligent and improper construction of defendant's road-bed, as before alleged, whereby plaintiff's crops and divers of his fruit trees then growing upon his land, and the grass in his own pasture, and upon adjacent lands, the peaceable, continuous, notorious, uninterrupted and adverse possession of which, as against the owners thereof, plaintiff had held and used as a pasture for more than ten years next before January 1, 1882, and on which his cattle and other stock had, during the time, been accustomed to graze, all of the value of $840, were destroyed; whereby also divers of his cattle and hogs, of the value of $785, were drowned, and others of them died for want of food; whereby also plaintiff lost, for a period of three months, the milk from eight of his milch cows, of...