Vance v. Southern Kansas Ry. Co. of Texas

Decision Date30 November 1912
PartiesVANCE v. SOUTHERN KANSAS RY. OF TEXAS.
CourtTexas Court of Appeals

Appeal from District Court, Carson County; F. P. Greever, Judge.

Action by F. W. Vance against the Southern Kansas Railway Company of Texas. From a judgment for defendant, plaintiff appeals. Affirmed.

R. R. Hazelwood, of Amarillo, for appellant. Terry, Cavin & Mills, of Galveston, J. C. Dial, of Miami, and H. E. Hoover, of Canadian, for appellee.

HUFF, C. J.

Appellant brought suit against appellee for damages alleged to have been sustained by him, occasioned by Russian thistles being blown upon his land from the right of way of appellee; said land being alleged to be contiguous to the right of way. Appellant alleged that, "in building, constructing, and preparing its said right of way contiguous to and near plaintiff's said land, the defendant, as plaintiff is informed and believes, and so charges the fact to be, negligently transported from distant points on its line of railroad large quantities of dirt and sand, containing seed of Russian thistles, which were by the defendant, its agents and servants, negligently and carelessly permitted to grow, spread, mature, and go to seed on its right of way in great quantities near and contiguous to plaintiff's said land. Plaintiff further avers that said thistles so negligently permitted to grow and go to seed on defendant's said right of way were blown by the wind during the fall and winter of 1909 and 1910 from about November 1st, and the winter and spring of 1911, in such quantities, and scattered their seed to such extent on and across plaintiff's said land that it is now all covered and infected with said thistles, and much of it is thereby rendered almost worthless and is greatly damaged thereby, to wit, in the sum of $10 per acre in the actual value, and $10 per acre in its market value." He further alleges in the petition that the right of way and appellant's land is in an open prairie country, no timber or any obstruction to prevent the blowing of the thistles upon the land, and he further describes the thistles as being easily blown across such country, and that they frequently have high winds in that part of the country.

Upon the trial appellant testified to the fact that the first time he ever saw Russian thistles in that country was on appellant's right of way, and, if there had ever been any previous to that time, he did not know it; that the first time he noticed thistles on his place was in the fall of 1909, the latter part; that the weed was then being blown onto his land, and that he got them and burned them. The first time he noticed them growing on his land was in 1910. Witness stated that all the thistles which grew on his land in 1910 were still there, except such as he had destroyed, though he had not made a success in that direction; that he had burned them and done everything he could, but that they would come back. On cross-examination he stated: "I admit that thistles did mature on my land in 1910 and did go to seed. There were no thistles on my land in 1909." At this point the appellee made a motion requesting the court to instruct the jury to return a verdict for the appellee, which motion the court sustained, and instructed the jury peremptorily to return a verdict for appellee, which they did, and judgment was rendered for appellee in accordance therewith. The defendant answered by general and special exceptions and general and special denial. In its special answer, appellee alleged that "during all the times and the years mentioned in said petition plaintiff himself permitted Russian thistles to mature and go to seed upon his said land," and, because of said acts, that plaintiff could not maintain his cause of action, because under the Act of the Twenty-Seventh Legislature, c. 117, Revised Statutes, arts. 4575a and 4575b, plaintiff, having permitted same to mature and go to seed upon said land, thereby under the law lost his right to recover herein, and the defendant here now pleads the said statutory obligation and the violation thereof on the part of the plaintiff as a complete bar to his right of recovery herein, if otherwise entitled to recover." The appellant, as shown by bill of exceptions No. 1, after the court sustained the motion to instruct the jury peremptorily, offered by his counsel to prove that he would have testified he sowed a part of the land in wheat in the early part of the fall of 1909, and it came up before any thistles were blown on it and before he knew any thistles were on the land, and before he knew or suspected they would blow on it, and before he knew or suspected it would be injurious to his land, even if they did blow on it; that he could not prevent thistles from blowing on that part of the land without entirely destroying the wheat and either plowing it up or continuing to plow the land at least twice a month during the growing season, or by covering it up with straw or a like material and burning it; that thistles do not mature to the extent of leaving the place of their growth before late in August, and that they do not therefore blow from place to place before that time; that, while the thistles were very thick on that part of his land on which the wheat was growing, the wheat was thick enough to confine the thistles to the land upon which it grew and that no seed which matured on his land during 1910 could or did grow a plant before 1911; that, under the circumstances, plaintiff honestly believes that the best interest of all parties concerned forbade his destroying his wheat crop on that part of his land upon which wheat was growing in order that he might prevent thistles from maturing and going to seed on such portion of his land to the extent they did; that, although he had permitted Russian thistles to grow and go to seed on his land during the year 1910, he did so by reason of the fact that it was impossible for him to prevent it without destroying the crop on the land."

In this court the appellant contends that the trial court erred in directing the jury to bring in a verdict for the appellee for the reasons: (1) That plaintiff was entitled to have his cause presented as a common-law action; (2) he was entitled to secure damages which resulted to his land by Russian thistles blown from the defendant's right of way during the year 1910, because the uncontroverted evidence showed that plaintiff permitted no Russian thistles to mature on land during that year which could be avoided, and without greater loss and damage than could or did result from the maturity of thistles on his land during that year; (3) because plaintiff was entitled to recover for all damages resulting to his land by thistles blown from defendant's right of way, although he may have permitted some thistles to mature after they had been blown...

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9 cases
  • Deep South Oil Co. of Tex. v. Texas Gas Corp.
    • United States
    • Texas Court of Appeals
    • September 17, 1959
    ...v. Consolidated Gas Utilities Corp., 300 U.S. 55, 57 S.Ct. 364, 371, 81 L.Ed. 510, these remedies are exclusive. Vance v. Southern Kansas R. Co., Tex.Civ.App., 152 S.W. 743; Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084. We therefore hold that damages may not be recovered in this action for......
  • Mosheim v. Rollins, 9546.
    • United States
    • Texas Court of Appeals
    • January 9, 1935
    ...grass and Russian thistles (Vernon's Ann. Civ. St. art. 6401), we have no such statute as to Bermuda grass. Vance v. Southern Kansas Railway of Texas (Tex. Civ. App.) 152 S. W. 743; Bangle v. M., K. & T. Ry. Co. of Texas (Tex. Civ. App.) 140 S. W. 374. Appellants, realizing this hiatus in t......
  • Fort Worth & D. S. P. Ry. Co. v. Gilmore
    • United States
    • Texas Court of Appeals
    • November 28, 1928
    ...that this statute provides an exclusive remedy. Bangle v. M., K. & T. Ry. Co. (Tex. Civ App.) 140 S. W. 374; Vance v. Southern Kansas Ry. (Tex. Civ. App.) 152 S. W. 743. It has also been held that under the common law an action will not lie against a railroad company for allowing noxious we......
  • Wichita Falls, R. & Ft. W. Ry. Co. v. Sparks
    • United States
    • Texas Court of Appeals
    • December 21, 1928
    ...fit to deny an action under that law to anyone who should permit the pest to be propagated on his premises." In Vance v. Southern Kansas Ry. Co. (Tex. Civ. App.) 152 S. W. 743, a part of plaintiff's claim, like the one here, was for damages and penalty for years prior to that when plaintiff......
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