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

• Decision Date: 01 November 1905
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ROLLINS.
• Court: Texas Court of Appeals

Page 1099

89 S.W. 1099

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ROLLINS.

Court of Civil Appeals of Texas.

November 1, 1905.

Appeal from District Court, Hunt County; H. C. Connor, Judge.

Action by W. B. Rollins against the St. Louis Southwestern Railway Company, of Texas. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E. B. Perkins and Templeton, Crosby & Dinsmore, for appellant.

FLY, J.

This is a suit instituted by appellee to recover of appellant damages in the sum of $1,000 incurred by reason of water being forced, through the failure to leave a sufficient opening to permit the waters of a creek to pass, upon the land of appellee, and his crops thereby destroyed. The cause was tried by jury, and resulted in a verdict and judgment for appellee for $172.

It is contended, through the first assignment of error, that the court erred in not sustaining a general demurrer to the petition because, among other things, it was not alleged that when the road was built appellant had failed to put in the necessary culverts and sluices as the natural lay of the land required, or that after its road was built the conditions above the embankment were so changed as to require additional culverts and sluices, and that appellant had not used ordinary care to erect the same. It was alleged that appellee was a tenant on the farm of F. P. Wood, lying immediately north of where the railroad crosses East Haddo creek, on the west side thereof; that the road runs east and west, and, while not clearly expressed, it may be inferred that the creek flows from the north to the south, and consequently the land of Wood is above the crossing of the railroad. It is further alleged that the trestling over the creek is 130 feet in length, and that the trestle on either side is approached by an embankment 10 feet high and at least a half a mile, on each side, in length; "that the defendant has failed to leave an opening at said crossing sufficient in size to permit the passage of the water in said creek, and the water accumulates and falls on the surface north of said crossing; and that at each considerable rainfall, by reason of the failure to provide openings in said embankment, and by reason of the failure to provide a sufficient opening at said crossing, the water in said creek, and the water that falls on several hundred acres of land immediately north and adjoining said creek and railroad, is concentrated, and is backed up over, on, and across said premises." The pleadings were sufficient to meet a general demurrer on the ground aforementioned. Appellee was not called upon to anticipate a possible defense of appellant, but could rely on an allegation that the opening was not sufficient to permit the passage of the waters of the creek, and if appellant desired that it be shown that the opening was sufficient when it was built, and that subsequent developments had not proved the opening insufficient, it should have alleged and proved it.

It is also insisted that the general demurrer should have been sustained to the petition, on the ground that the value of the crops of 1902 and 1903 were not separately stated, the whole damage being laid at $1,000, and because it was not alleged that appellee had any interest in the 18 acres of cotton claimed to have been overflowed in 1902. And it is also urged that a special exception to the petition, on the ground that the damages for each year were not separately alleged should have been sustained. It does not appear from the record that any action was had by the court on demurrers filed by appellant, and the presumption will prevail that they were not presented, but were waived. Rowlett v. Fulton, 5 Tex. 458; Chambers v. Miller, 9 Tex. 236; Floyd v. Rice, 28 Tex. 341; Sup. Com. K. of G. R. v. Rose, 62 Tex. 321; Bonner v. Glenn, 79 Tex. 531, 15 S. W. 572.

When evidence as to the crop of 1902 was offered, appellant objected, on the ground that there were no allegations in the petition that would authorize evidence on that subject, which objection was overruled by the court. It is the rule in Texas that pleadings must be wholly defective, and show no cause of action or defense, before objections to testimony because of the insufficiency of the pleadings will be entertained. Pyron v. Butler, 27 Tex. 271. In view, therefore, of the objection to the evidence, it will become necessary to examine the petition on the point raised. It is...