St. Louis Southwestern Ry. Co. of Texas v. Long

• Decision Date: 22 October 1908
• Citation: 113 S.W. 316
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. LONG.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 316

113 S.W. 316

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. LONG.^†

Court of Civil Appeals of Texas.

October 22, 1908.

Rehearing Denied November 12, 1908.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Action by J. H. Long against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff. Defendant appeals. Affirmed on condition of remission of damages.

This suit was commenced by appellee against appellant by a petition filed July, 7, 1907. The appeal is prosecuted by the latter from a judgment for the sum of $560.25 in favor of the former. The trial was before the court without a jury; and from the record it appears that the court found as facts: (1) That by purchase of one Wilson on October 6, 1904, appellee became, and thereafterwards and at the date of the trial, was, the owner and in possession of the land described in his petition, and lying north of and contiguous to appellant's right of way, on which in 1888 it had constructed and there afterwards maintained as its roadbed a dump or embankment about 2½ feet in height. (2) That in the construction of said dump, and in the maintenance thereof thereafterwards, appellant had neglected to provide culverts and sluiceways sufficient to carry off the water obstructed in its natural flow by said embankment, and, as a result, appellee's land and crop growing thereon were injured and destroyed by water so obstructed in its natural flow. (3) That said embankment and its culverts and sluiceways remained as constructed in 1888, except that as originally constructed a ditch or barrow pit was provided along the north part of appellant's right of way, adjoining appellee's land, which, when kept well opened, furnished reasonable protection to said land from water obstructed by said embankment. (4) That after the railway had been so constructed the ditch or barrow pit gradually filled up, but was opened up about 1898, when it again began to fill up, and by the beginning of 1906 was so filled up as not to furnish protection against water obstructed in its natural flow by said embankment. (5) That, as the result of water obstructed by said embankment overflowing and washing his land and the crops growing thereon during the years 1906 and 1907, said land was "permanently damaged and depreciated in value" in the sum of at least $100, his corn crop was damaged in the sum of $40, and his cotton crops in the sum of $660, less the sum of $199.75, which would have been the cost of growing, etc., said crops. The court further found that some time prior to April 28, 1893, one Queener, who at the time the embankment was constructed owned the land, had sued appellant and recovered against it a judgment for damages to said land and crops growing thereon sustained by him prior to the institution of his suit by reason of appellant's failure to provide sufficient culverts and sluiceways to carry off the water obstructed in its natural flow by said embankment, and that in 1898 said Queener, then still being the owner of the land, had entered into a written contract with appellant whereby, for a sufficient consideration, he had released to appellant all claim for damages theretofore or which might thereafterwards be sustained by him by reason of overflows caused, or which might be caused by water overflowing his land because obstructed in its natural flow by said embankment. The court further found that appellee had neither actual nor constructive notice of the judgment recovered by Queener against appellant in 1893, nor of the release by Queener in 1898 of damages which might thereafterwards result to the land and crops growing thereupon as the result of overflows, but was a purchaser in good faith from Wilson, to whom Queener had conveyed, of the land for a valuable consideration paid by him to said Wilson. We adopt as our own the findings of the trial court, so far as specified above.

McReynolds & Hay and Head, Dillard & Head, for appellant. McGrady & McMahon, for appellee.

WILLSON, C. J. (after stating the facts as above).

If it should be said from the record, in face of the finding of the trial court to the contrary necessarily included in the judgment rendered, that the embankment as constructed by appellant created a permanent nuisance, causing constant or regular recurring injury to the land in question, the contention made by appellant that at the time the embankment was constructed a cause of action arose in favor of Queener, then the owner of the land, for all damages caused or which might in the future be caused to his land by the embankment, so long as it was maintained in an unchanged condition, would be a sound one. Rosenthal v. Taylor B. &. H. Ry. Co., 79 Tex. 325, 15 S. W. 268; Railroad Co. v. Barry, 98 Tex. 248, 251, 83 S. W. 534. And it would follow that, the right to recover such damages having accrued to Queener as the owner of the land at the time the embankment was constructed, a right of action could not accrue to appellee for damages suffered by him after he became the owner of the...