Trinity & S. Ry. Co. v. Schofield

• Decision Date: 22 January 1889
• Citation: 10 S.W. 575
• Parties: TRINITY & S. RY. CO. <I>v.</I> SCHOFIELD.
• Court: Texas Supreme Court

10 S.W. 575

TRINITY & S. RY. CO.v.

SCHOFIELD.

Supreme Court of Texas.

January 22, 1889.

Commissioners' decision. Appeal from district court, Tyler county.

Action by J. B. Schofield against the Trinity & Sabine Railway Company for damages for the destruction of crops and injury to land occasioned by overflows which, as alleged, were caused by the negligent construction of a ditch cut by defendant to change the channel of a stream through plaintiff's farm. Plaintiff filed an amended petition, setting up additional causes of the overflows in other acts of negligence upon the part of defendant in constructing its road-bed and digging ditches to drain surface water, and alleged that his farm was overflowed three times, destroying the crops, and washing away the soil from a portion of the farm, and depositing sand and gravel upon another portion of it, rendering the portions so washed and covered with sand totally worthless. Defendant appeals.

S. T. Robb and J. P. Stevenson, for appellant. T. J. Russell, for appellee.

ACKER, J.

The trial court permitted appellee to prove, over the objection of appellant, the cost of removing the sand that had been deposited upon a portion of the farm by the overflows, and upon the question of the measure of damages to land charged the jury that it "would be the difference between the fair market value of said land before and after said damage was caused;" and, further, that "if the facts show that the cost of removing the sand therefrom would be more than the market value of the land before the same was washed upon it, then the measure of damages would be the actual cash market value of the land so covered with sand at the time it was so covered, and if the cost of moving away the sand and restoring the land to its condition before it was so covered with sand, then the measure of damages would be the cost of so removing the sand." Under numerous assignments of error it is contended that the court erred in admitting evidence as to the cost of removing the sand, and in its charge on the measure of damages. As the judgment must be reversed, and the cause remanded, we deem it proper to here announce the rules which we think should control in determining the measure of damages in cases of this character. If the crops are shown to have been totally destroyed in consequence of the negligence or wrongful act of the defendant, the correct measure of damages would be the actual cash value of the crops as they stood upon the land at the time and place they were destroyed, with legal interest to the time of the trial. If the crops are shown to have been damaged in consequence of the negligence or wrongful act of the defendant, but not totally destroyed, then, the correct measure of damages would be the difference between the actual cash value of the crops as they stood upon the land at the time immediately before the injury and their actual cash value immediately after such injury, to the extent that the plaintiff could not have prevented the injury by reasonable diligence, with legal interest to the time of the trial. Railway Co. v. Joachimi, 58 Tex. 460; Railroad Co. v. Young, 60 Tex. 201; Railway Co. v. Bayliss, 62 Tex. 571; Railway Co. v. Holliday, 65 Tex. 521. With respect to damages to real property we believe the correct rules to be: If land is taken, or the value thereof totally destroyed, by the negligence or wrongful act of another, the owner would be entitled to recover the actual cash value of the land at the...