Siewerssen v. Harris County

• Decision Date: 08 December 1905
• Citation: 91 S.W. 333
• Parties: SIEWERSSEN v. HARRIS COUNTY et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

91 S.W. 333

SIEWERSSEN v. HARRIS COUNTY et al.^*

Court of Civil Appeals of Texas.

December 8, 1905.

Error from District Court, Harris County; Norman G. Kittrell, Judge.

Action by E. Siewerssen against Harris county and another. From a judgment in favor of defendants, plaintiff brings error. Affirmed.

Tharp & Whitehead, for plaintiff in error. Baker, Botts, Parker & Garwood, Andrews, Ball & Streetman, and C. L. Carter, for defendant in error railway company. F. L. Schwander, Co. Atty., for defendant in error county.

PLEASANTS, J.

This suit was brought by plaintiff in error against the Texas & New Orleans Railway Company and Harris county to recover damages for injury alleged to have been caused a growing crop upon land owned by appellant and adjoining the right of way of defendant railroad in Harris county. Plaintiff's cause of action is thus set out in his petition: "That the defendant the Texas & New Orleans Railroad Company has owned and operated for five years last past, and still owns and operates, a certain line of railroad extending eastward through Harris county to the San Jacinto river, and on eastward to the city of New Orleans, which railroad passes the station called Sheldon, in Harris county, at a point about 1¼ miles west of the San Jacinto river. That prior to the injury complained of the said railroad company dug a large ditch along its railroad track on its right of way, beginning about 200 yards westward from Sheldon, and extending along its said railroad track on the northwest side thereof a distance of about 5 miles, which ditch has no outlet or place to discharge its waters, except a certain culvert constructed through said railroad at a point about 1¼ miles westward from Sheldon, which said culvert is about 50 feet wide and about 6 feet deep through said railroad track. That Harris county, about the year 1901, constructed and graded a public road from a point about 5 miles southwest from Sheldon, extending northeastward, adjacent to said railroad track and on the south side thereof, and in the construction of said road Harris county dug a certain ditch along the south or southeast side thereof, which ditch extends northeastward to San Jacinto river; and at a point about 1¼ miles southwestward from Sheldon, and adjacent to the aforesaid railroad culvert, Harris county constructed a culvert through its said public road about 40 feet wide, and about 5 feet deep, which said culvert opened into said public road ditch, which is about 12 feet wide and about 4 feet deep at said point, and as it extends northeastward it gradually becomes shallower until it reaches the distance of about 3,000 feet, where it is only about 18 inches deep, and in extending further in the direction of the San Jacinto river it varies in depth from 1 foot to 18 inches deep at different places, until it reaches an embankment a short distance northeast from Sheldon, but was not constructed to the San Jacinto river. The said public road, which is graded, together with its ditches and culverts, is owned by Harris county, and was constructed by said county for the public use of its citizens. That said county road ditch stands full of water adjacent to said culvert and for a distance of several hundred yards on either side about all of the year, but the portion of the ditch extending northeastward from said point is dry, except in the rainy season. Said ditch is entirely too small and insufficient to carry off the water which is turned into it by the aforesaid culverts, and whenever there is a large rain the country south of said public road and between said culvert and Sheldon is overflowed by water, which frequently remains on the country for a number of days. The plaintiff is the owner of lot No. 3 of the John Jones league, in Harris county, containing 975 acres, and situated for the most part south of the Texas & New Orleans Railroad track and said county public road, and south of Sheldon. That during the last six years plaintiff has occupied, possessed, and cultivated a portion of said tract, and the same had been by him at great expense put in a high state of cultivation. [Here follows a description of plaintiff...