Texas & P. Ry. Co. v. Dunn

• Decision Date: 20 November 1891
• Citation: 17 S.W. 822
• Parties: TEXAS & P. RY. Co. v. DUNN.
• Court: Texas Supreme Court

Page 822

17 S.W. 822

TEXAS & P. RY. Co. v. DUNN.

Supreme Court of Texas.

November 20, 1891.

Appeal from district court, Marion county; JOHN L. SHEPPARD, Judge.

Action by Hannah Dunn against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

F. H. Prendergast, for appellant. Geo. T. Todd, for appellee.

GAINES, J.

The appellee brought this action to recover of the appellant, the Texas & Pacific Railway Company, damages for injuries to a lot in the city of Jefferson, alleged to have been caused by a drain-pipe which had been laid by the receivers of the company. The track of the railroad is laid along Tuttle street, which bounds the appellee's lot on the west. The lot is bounded on the north by Broadway. From the point where the railroad crosses Broadway there is an ascent east, north, and west, so that the water which falls in that vicinity flows down to the intersection of the street and railroad, whence it escapes along the track towards the south. In July, 1887, the railroad company, in order to improve the crossing of the street, put in a drain-pipe across Broadway on the east side of its track. Before the drain was put in the water collected in a pond above Broadway, and, it would seem, escaped more slowly than it did after the improvement was made. There was testimony tending to show that the pipe caused the water to flow with more force than before. It also appears that when the railroad was constructed a cut had been made west of appellee's lot, and that the water flowed along a ditch near her fence, which was presumably on her west boundary line. She testified that the drain-pipe "caused the water to rush through with such force that it caused the bank to cave and fall in, and my fence to fall with it. The water that accumulated to the north of Broadway and east of the railroad came through the drain-pipe and passed to the south on the east side of and along the railroad track, and washed my fence up. I had many valuable apple trees and plum trees on the lot, and, on account of the fence being gone, the stock got in, and ruined the trees. The damage to the fence and lot was $300, and damage to the fruit trees was $100. Some of this damage was done a year and a half prior to May, 1888, [the date this suit was filed,] but most of the damage was done in the spring of 1887. * * * A portion of my fence caved in before the drain-pipe was put in, and I had repaired it several times. After the...