Texas & Pac. Ry. Co. v. Edrington

• Decision Date: 17 April 1907
• Citation: 101 S.W. 441
• Parties: TEXAS & PAC. RY. CO. v. EDRINGTON.
• Court: Texas Supreme Court

101 S.W. 441

TEXAS & PAC. RY. CO. v. EDRINGTON.

Supreme Court of Texas.

April 17, 1907.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Action by W. R. Edrington against the Texas & Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

T. J. Freeman, W. L. Hall, and Spoonts, Thompson & Barwise, for appellant. Robert G. Johnson, for appellee.

BROWN, J.

Certified questions from the Court of Civil Appeals of the Second Supreme Judicial District, as follows:

"W. R. Edrington, appellee in the above-styled cause now pending before this court on appeal, instituted suit in the district court of Tarrant county against the Texas & Pacific Railway Company, the appellant, to recover damages under the following circumstances: Appellee alleged that he was the owner of a piece of property near the western limits of the city of Ft. Worth, and about 250 feet from the tracks of the said railway company, and upon a part of which he had his homestead; that the railway company, after the purchase by him of said property and the erection of his homestead erected two large water tanks on its right of way, almost immediately south of his residence, and within about the distance above mentioned. His allegations were sufficient to show, and his evidence would have supported a finding, that the erection and use of said water tanks by appellant constituted a nuisance as to him and his said property, entitling him to damages if appellant is not relieved by reason of the following further facts. The pleadings of appellant and the undisputed facts show that it had acquired its right of way where said tanks were situated, and had been operating its railway, more than 20 years prior to the filing of this suit, though the tanks themselves had been constructed only about one month. It also alleged, and its evidence tended to show, that it had built said water tanks in a proper manner and exercised proper care in their use, and, further, that the use of said water tanks was reasonable and necessary for the proper transaction and carrying on of its business.

"The court instructed the jury as follows: `If you believe from the evidence that the supplying of water to defendant's engines from the water tanks alleged in plaintiff's petition, with the exercise of ordinary care, necessarily produces smoke and noise to such an extent as to cause personal discomfort and annoyance to any persons who should occupy plaintiff's property alleged in his petition to be his home, and that by reason thereof the market value of said property has been depreciated, then you will find for plaintiff damages for such depreciation the measure of which would be the difference, if any,...