San Antonio & A. P. Ry. Co. v. Burns

• Decision Date: 19 June 1905
• Citation: 87 S.W. 1144
• Parties: SAN ANTONIO & A. P. RY. CO. v. BURNS et al.
• Court: Texas Supreme Court

87 S.W. 1144

SAN ANTONIO & A. P. RY. CO. v. BURNS et al.

Supreme Court of Texas.

June 19, 1905.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Action by Arthur Burns and others against the San Antonio & Aransas Pass Railway Company. Plaintiffs recovered a judgment, and defendant appealed to the Court of Civil Appeals, which certifies questions to the Supreme Court.

Proctors, for appellant. Davidson & Bailey, for appellees.

BROWN, J.

Certified questions from the Court of Civil Appeals for the First Supreme Judicial District. The statement and questions are as follows:

"Appellees brought this suit, alleging that they were owners of land lying on each side of the defendant railway company's right of way; that the defendant company had permitted Johnson grass to go to seed upon its right of way, and had negligently permitted it to be communicated to plaintiffs' land, to their damage, for which they prayed, as well as for the penalty prescribed in the act of the Legislature of April 18, 1901, commonly known as the `Johnson Grass Statute.' At the trial plaintiffs, in open court, abandoned their action under the statute, and sought to sustain a recovery under the rules of the common law, but they made no change in their pleading. They recovered a judgment, and the defendant company has appealed to this court. The case is now pending before us on rehearing.

"The facts are that plaintiff is the owner of cultivated land lying on each side of defendant's right of way. The defendant is a railway corporation. It has for years permitted Johnson grass to mature and go to seed on its right of way. It was not placed on the right of way by the company's procurement, and, though it has been communicated to appellees' lands, to their damage, this has not been due to the actionable negligence of the company, unless the statute be applied. The appellees have passively permitted the grass so communicated to their land to mature and go to seed thereon, and defendant pleaded and urged that fact as a defense to the suit. We reversed the judgment of the trial court on the ground that the undisputed proof showed that appellees had no action at common law. We remanded the cause, however, on the ground that the facts would sustain the statutory action for damages. In view of another trial, we construed the statute relating to the defense to such a suit, and held that, if the appellees had simply allowed to go to seed upon their land the grass communicated by the wrong of defendant, it would constitute no defense to the action under the statute.

"We respectfully certify for your decision the following questions:

"First. Plaintiffs having pleaded and proved a case which would have justified a...