Taylor v. San Antonio & A. P. R. Co.

• Decision Date: 26 October 1904
• Citation: 83 S.W. 738
• Parties: TAYLOR v. SAN ANTONIO & A. P. R. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

83 S.W. 738

TAYLOR v. SAN ANTONIO & A. P. R. CO.^*

Court of Civil Appeals of Texas.

October 26, 1904.

Appeal from District Court, Falls County; S. R. Scott, Judge.

Action by W. M. Taylor against the San Antonio & Aransas Pass Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Rice & Bartlett, R. Lyles, and Henderson, Morrison & Freeman, for appellant. A. W. Houston and Baker & Thomas, for appellee.

EIDSON, J.

This was an action by appellant against appellee for damages to the land and crop of appellant from overflow alleged to have been caused by the improper and negligent construction of appellee's railway, and in which judgment was rendered for defendant (appellee). Appellant's cause of action is alleged substantially as follows: On the dates complained of, he was the owner of four tracts of land, forming one body, and aggregating about 600 acres, lying south of the town of Rosebud, a station on defendant's railway in Falls county, and adjacent to the town site of said town, and between the town and Pond creek—a water course which drained plaintiff's land and a large area to the northward thereof, including said town of Rosebud, which is about two miles from said creek, Plaintiff's land was situated in the valley of said creek, and the general slope of the surface of the country over and including the town of Rosebud and plaintiff's land was southward and westward, in the direction of said creek. The natural watershed for surface rainwater flowing from Rosebud and vicinity was southwesterly to said creek, over and through natural depressions, basins, and channels which existed long prior to the construction of defendant's railway; said surface water being thus carried off into Salt branch, a tributary of Pond creek, and lying westward of said railroad, and thence to said creek, without damage or injury to plaintiff's land. The surface of his land was drained in part of the water falling thereon by means of a depression or draw, beginning about one-fourth of a mile from plaintiff's north line, and about the same distance west of defendant's railroad, and extending through part of plaintiff's land in a southeasterly direction, and discharging into Pond creek. That said draw existed as a natural feature of the surface long prior to the construction of defendant's railway, and now exists, and was about 300 yards wide and about one-half mile long; and water falling upon a part of plaintiff's land was accustomed to flow out through said draw, and spread over the surface thereof in a wide sheet, in such a way as to do no damage to the land and the crops growing thereon, and said depression was sufficent to carry off the water properly draining therethrough without damage. Plaintiff's tract of land was in a high state of cultivation; crops of corn, cotton, and other products were growing thereon; and plaintiff was able to grow, prior to the injuries complained of, large and valuable crops on said land, and particularly in said depression, without damage or injury from water flowing thereover. Defendant's line of railway extended through plaintiff's land a distance of about one mile and a half in a course north and south, crossing Pond creek at plaintiff's south line, and divided plaintiff's land about equally, and crossed said depression near its beginning. Defendant negligently constructed and maintained its railway at and from its station in the town of Rosebud into and through plaintiff's land, so that the surface water, which had aforetime flowed from said town according to the natural lay of the land across and to the westward of said railway into Salt branch, and not upon plaintiff's land, was diverted from its natural course by means of defendant's railway embankment and ditches, culverts, and sluiceways described in plaintiff's petition, and caused to flow down and along defendant's railway into plaintiff's land, and, together with other water which fell upon plaintiff's land, and which had aforetime, according to the natural lay of the land, drained through said depression, was collected and impounded therein, immediately above defendant's railway, and on plaintiff's land, where the same inundated and destroyed the crops on about 10 acres of plaintiff's land, and washed and injured the soil thereof. Said water was thence discharged in great force and volume across said railway track through certain culverts and sluiceways described in plaintiff's petition onto plaintiff's land lying east of and below said railroad, whereby said land and the crops growing thereon were injured and destroyed. That the water flowing through said depression was not permitter to spread out and flow as it had been accustomed to do before the construction of said railway, and, but for the negligent construction and maintenance of defendant's roadbed, the surface water flowing from Rosebud and vicinity would have flowed, according to the natural drainage and surface of the land, into Salt branch and Pond creek, and not upon plaintiff's land, and would not have been collected and impounded in said depression, and, but for the negligent construction of defendant's embankment across said depression, and its failure to provide sufficient sluiceways for the proper passage of the water which flowed through said depression, such water as naturally drained therethrough would have passed off as it did prior to the construction of said railway, and without injury to plaintiff's land or crops.

Appellant submits the following assignments of error together:

"First Assignment of Error. The general charge of the court incorrectly and incompletely stated the plaintiff's cause of action as alleged in his petition, and as shown by the evidence, in this: Plaintiff alleged for his cause of action `that defendant, in constructing and maintaining its line of railway through plaintiff's tract of land, and northward therefrom to the town of Rosebud, was guilty of negligence in failing to provide sufficient culverts and sluiceways for the passage and flow of surface water according to the natural drainage of the land, and that, at the times complained of in plaintiff's petition, the rainwater falling in Rosebud and vicinity to the northward of plaintiff's land, and which, according to the natural drainage and lay of the land, would have flowed off across and to the westward of defendant's railway into Salt branch, and not over plaintiff's land, was collected in great quantities near defendant's station in Rosebud, and was thence diverted from its natural course to Salt branch, and, by means of certain ditches constructed along defendant's railway and certain culverts, was caused to flow down into plaintiff's land, and, together with other surface water, which, according to the natural drainage of the land, flowed over plaintiff's land, was collected on the west side of defendant's railroad track, near the head of a natural depression in plaintiff's land, by means of a dam or embankment built as a roadbed by defendant across said depression; and said water was not permitted to spread out and flow as it would have done but for said obstruction, without injury to plaintiff's land or crops, but was caused to stand upon ten acres upon the west side of said railroad, whereby plaintiff's crop and land were injured, and was from thence discharged through a culvert and certain sluiceways with great force and in great quantities upon plaintiff's land eastward of said railway, washing his land and crop and injuring the same; the substance of plaintiff's cause of action being that defendant collected and caused a large flow of water, which would not have passed into his land according to the natural drainage, to flow into the same, and that the damage complained of was caused by the volume of this water, and by the manner in which the same was concentrated with other surface water in plaintiff's field.' But in stating plaintiff's cause of action in the charge to the jury, the court failed to make any mention whatever of so much of that part of plaintiff's complaint as alleged the collection and concentration of the water falling in Rosebud and vicinity, and its diversion from its natural course, whereby it was carried into plaintiff's farm as aforesaid; and said charge only stated plaintiff's cause of action to be the alleged negligence of defendant in the construction of its roadbed across said depression, and, in effect, stated to the jury that said water from Rosebud and vicinity would have flowed through his land in its natural course, and thereby deprived plaintiff of any hearing before the jury on account of said water so flowing from Rosebud as aforesaid, although most of the testimony in the case was directed to proof as to the flow of said water, and the same was particularly alleged and complained of in plaintiff's petition; and the jury were, in effect, instructed that plaintiff was not entitled to recover any damages, except such as might have resulted to him on account of the manner in which defendant's roadbed was constructed across said draw or depression. And plaintiff, in this connection, shows that he requested special charges Nos. 5, 7, and 9, here referred to, and which stated with more particularity and completeness plaintiff's cause of action to the jury, but which charges the court refused to give. Wherefore plaintiff says that he has been deprived of a proper consideration of his cause of action by reason of the manner in which the same was submitted in the court's general charge, and by the court's refusal to give the special charges requested.

"(2) The court erred in refusing to give plaintiff's special charge No. 1, to the effect that the defendant, while `having the right to change the natural direction of the course of the flow of the surface water, was required to so conduct and discharge the same as not to cause any greater injury to the land and crops growing on plaintiff's land than would have been...