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

• Decision Date: 17 November 1891
• Citation: 17 S.W. 1052
• Parties: SAN ANTONIO & A. P. RY. CO. v. KNOEPFLI.
• Court: Texas Supreme Court

17 S.W. 1052

SAN ANTONIO & A. P. RY. CO. v. KNOEPFLI.

Supreme Court of Texas.

November 17, 1891.

Commissioners' decision. Section A. Appeal from district court, Kendall county; T. M. PASCHAL, Judge.

Action by Gottfried Knoepfli against the San Antonio & Arkansas Pass Railway Company to recover 64 acres of land and damages. Plaintiff obtained judgment, and defendant appeals. Affirmed.

The other facts fully appear in the following statement by COLLARD, J.:

This suit was brought by the appellee against the appellant railway company to recover 64 acres of land belonging to plaintiff and for damages. The land was considerably longer than it was wide, and had about 30 or 35 acres inclosed in a farm. Defendant, in constructing its road, built the road-bed lengthwise through the survey, and appropriated for a right of way a strip 100 feet wide, or 5 acres of the land. The persons building the road entered the farm on the north, tore down plaintiff's fence, and left an opening there into his farm from the 24th July to the 15th of August, 1887, through which cattle entered, and injured his crops then standing on the ground. The company made an opening in the fence about the 15th January, 1887; and plaintiff thereupon made a light fence across the break, which remained there until the 24th July, at which time the track-layers pulled it down, leaving the opening as before stated. Plaintiff knew of the opening about the time it was done, and between that time and the 15th of August he caused a wire fence to be run along parallel with the road and back under some trestle-work, in the form of a loop, which kept the cattle out. In February, 1887, defendant broke plaintiff's stone fence on the south side of the tract, which he repaired with a rail fence, and which remained there until about the 24th July, when defendant made a cattle-guard there, so defective that cattle got into the farm from that side, and damaged his crops. About five-sixths of the damage to the crops was by cattle entering on the north side. These damages were set off by plaintiff, as well as the damages for destroying his fences; and he claims also the value of the five acres appropriated for right of way, and for the injury to the rest of the land caused by the embankment and road-bed. Defendant, among other things, answered its willingness to pay a reasonable compensation for the right of way, and asked that the same be ascertained and decreed to it, and denied all claim for damages. A verdict was rendered for plaintiff for $530.50 damages, $150 of which was for the 5 acres right of way. The verdict was itemized, and the proof sustained it. Judgment was entered for plaintiff for his damages and costs, and said nothing in response to defendant's prayer for decree for the right of way. It was admitted on the trial that the title to the land was in plaintiff at the time of defendant's entry. Plaintiff's claim to possession of the right of way was abandoned, and the status of the suit was admitted to be for the recovery of the value of the right of way and damages. Defendant appealed.

R. B. Minor, for appellant.

COLLARD, J., (after stating the facts.)

The only assignment of error in the record insisted on by appellant is as follows: "That the court erred in refusing to give to the jury the following special charge, asked by defendant, to-wit: `If you believe from the evidence that injury was done to plaintiff's crop by stock passing into his field through an opening made and left open by defendant in the north fence of plaintiff's field; and if at same time you believe from the evidence that plaintiff, by the exercise of reasonable diligence, might have closed such opening himself in time to prevent such stock from entering his field through such opening,— then you will not find against defendant any damages for such injury to plain...