town of Conroe, which is the county site of Montgomery county, was established after appellant's purchase, and is partly on the Lang survey. It is situated at the intersection of the roads of the two defendants. In 1888 or 1889 appellant platted a part of the Lang survey into town lots, and began to sell them according to the plat. This plat recognized the right of way of the Great Northern as having a width of 65 feet from the center of the track each way, the lots abutting on the right of way according to that width. Plaintiff testified that he saw the road in 1872. It was completed and the right of way cleared at that time. It has been kept cleared ever since in the general maintenance of the line, but a little wider now than then. The general width to which the right of way has been cleared and maintained through the Lang survey for years is at least 130 feet. Whether the possession of this, uninclosed as it was, was of such continuous character as to sustain the plea of limitation to the entire width, may well be doubted, but that the railway company, in the exercise of its charter powers, took possession of a right of way at least the width awarded by the court, is to our minds established beyond controversy. This being true, if the authority given by the state to construct the road through Montgomery county, and to that end to acquire a right of way not to exceed 50 yards in width, carried with it either directly or inferentially a grant of right of way through and over such tracts on its route as were yet a part of the public domain, the judgment should be affirmed whatever may be the state of the proof on the issue of limitation. Article 4423 of the Revised Statutes, which became a law in 1879, expressly gave to railway companies a right of way through the public domain. Prior to that time there had been no express provision on the subject; so it follows that the defendants are unaided by the article cited, or anything of a like nature preceding it. As stated, however, in Tex. Cen. Ry. Co. v. Bowman (Tex. Sup.) 79 S. W. 296: "The general laws which had been enacted regulating railways theretofore seem to have assumed, rather than to have expressly declared, the existence of the right over the lands of the state, for the provisions for the acquisition of such rights by purchase or condemnation applied only to private property. The general law passed in 1876 for the chartering of railway corporations omitted any express provision as to right of way upon lands belonging to the state, but, as before, regulated the acquisition of such right over private property." Justice Williams, after this comment upon the state of the law, proceeds to show that the absence of any provision for the acquisition of right of way over public properties pervaded all general legislation on the subject until the Revision of 1879. While it is not expressly held, nor was it necessary to

be decided in the case cited, it is inferentially held that prior to the passage of the act a charter authorizing the construction of a railway through a country held in part by private ownership and in part by the state, the general laws providing for acquisition of right of way from private owners, but leaving the company powerless against the lands of the state, impliedly granted the right to construct through and over the public domain. The grant is so necessary to the exercise of the general power conferred it is inevitably carried by the general terms of the grant. This is in accord with the elementary rule of construction that a power necessary to the exercise of a power already granted will be implied. We are of opinion, therefore, that by its charter the Great Northern Company acquired the right to enter upon and appropriate so much of the public domain over which its route was projected as was necessary for its right of way, not to exceed the prescribed width, and that, having done so, the width actually appropriated was not affected by the subsequent grant by the state of the Lang survey.

By the description in the grant the grantees had actual notice of the railway company's existence, and its powers, and of the fact that the Wilson Lang grant had been located along its line. They took subject to the rights acquired by the company. As to the width of the right of way thus appropriated, we think the proof is undisputed that it amounted to at least as much as was awarded to defendants by the judgment of the court. In this view of the case all errors become harmless. We therefore do not notice the other assignments. Because, under the facts the judgment could not have been otherwise, it is in all things affirmed.

The cross-assignment assailing the trial court's disposition of the question of costs is overruled. Affirmed.

HANAWAY v. WISEMAN.* (Court of Civil Appeals of Texas. June 3, 1905.)

1. CONVERSION-DAMAGES-INSTRUCTIONS.

Where, in an action for conversion of corn, it was conceded that defendant was the owner of a one-third of the stack of corn, an instruction that the jury should compensate plaintiff for the value of "the corn," was not erroneous. 2. SAME-INSTRUCTIONS.

An instruction that the jury should "compensate" plaintiff for the value of the corn converted, was not erroneous, though not literally in the approved form.

Appeal from District Court, Knox County; J. M. Morgan, Judge.

Action by J. M. Wiseman against R. W. Hanaway. From a judgment for plaintiff, defendant appeals. Affirmed.

*Rehearing denied July 1, 1905, and writ of error denied by Supreme Court.

Montgomery & Hughes and D. J. Brookerson, for appellant. Glasgow & Kenan, Chas. E. Coombes, and Sam J. Hunter, for appellee.

CONNER, C. J. This is an appeal from a judgment in appellee's favor for the sum of $300 as actual damages for the conversion of certain kaffir corn and straw. The facts are that on December 2, 1901, appellant sold to one J. D. Gray a section of land upon credit, the payments being made to mature one, two, three, four, and five years after that date, the vendor's lien being retained to secure the notes for the deferred payments. Gray failed to pay anything on the land, and in November, 1902, Hanaway filed suit in the proper court to collect his debt and foreclose said lien. Gray was served with citation in January, 1903, and Hanaway obtained judgment on April 7, 1903, and a foreclosure of lien, with order of sale, by virtue of which appellant in July, 1903, again became the owner, and was placed in possession of said section. In October, 1902, appellee rented part of the land in controversy from Gray for the year beginning January 1, 1903, with the agreement that he was to pay one-third of the kaffir corn in the stack to Gray as rent, there being no contract as to straw. The kaffir corn was planted in the latter part of April, 1903, and was ready for harvest in the latter part of September of that year, at which time it further appears that appellant caused appellee's arrest upon complaint filed charging criminal offenses, and thereafter converted the kaffir corn and a certain stack of straw to his own use. Appellee, in his petition, also alleged that the prosecution instituted against him upon affidavits of appellant were malicious, and he prayed for the recovery of damages therefor. But from the verdict of the jury, construed in the light of the court's charge, it plainly appears that the jury found against appellee on the issue of damages for the alleged malicious prosecution. The first and second assignments of error therefore will be overruled without discussion, inasmuch as they relate to that issue alone.

The remaining assignments (the third and fourth) complain of the court's charge; but we do not think the objections thereto maintainable. The court charged the jury, in substance, that, if they found the facts as hereinbefore stated, they should find for appellee, and "assess his actual damages at such sum as you [they] consider from the evidence will reasonably compensate him for the value of said kaffir corn and wheat straw." Appellant insists that it is undisputed that he, as owner, was entitled to one-third of the kaffir corn as rent, and that the charge quoted permitted the jury to find against him for the value of the whole. Appellee testified that "the rent was Hanaway's," and that such was the fact is not disputed. The charge limiting, as it does, appellee's damages to compensation merely, we think it quite improb

le that the jury understood the charge as

requiring of them a finding for the value of the entire crop; particularly in view of the special charge given by the court at appellant's request, "that whatever quantity of kaffir corn or straw was the property of J. D. Gray became (when the land referred to in plaintiff's petition was sold to defendant) the property of the defendant, and you can find nothing for plaintiff as to said property."

The further contention that the charge "did not give the jury the correct measure of damages, and left it to the jury to adopt such measure as they saw proper," presents a difficulty more apparent than real. While the charge is not literally in the form approved by the decisions, we yet think it substantially correct. As before stated, the jury was thereby limited to "compensation" for the damages done appellee. This is the true basis for the rule, and there is nothing in the record to indicate that the jury entertained any other thought. It is true the evidence as to the value of the kaffir corn and straw was conflicting, but appellee's testimony abundantly sustains the verdict. Indeed, such testimony fixed the value of said property in the aggregate at $800 or $900.

There being no other assignments, and finding that the evidence sustains the material allegations of appellee's petition and the verdict of the jury, it is ordered that the judgment be aflirmed.

1. SET-OFF AND COUNTERCLAIM-EFFECT OF JUDGMENT.

Plaintiff recovered a judgment against defendant for a certain sum and for the foreclosure of a landlord's lien on certain syrup in plaintiff's possession. Defendant in the same action set up a claim against plaintiff for the wrongful suing out of an injunction, and the court charged that defendant was entitled to recover, if at all, the reasonable market value of the syrup that could have been made out of the cane by the plaintiff, less the cost of converting it into syrup. The jury found for defendant for a sum less than that found in favor of plaintiff. Held, that a judgment for plaintiff for the difference made the syrup the property of plaintiff, so that it was error to adjudge a lien on it and require it to be sold to satisfy the judgment.

2. APPEAL THEORY OF TRIAL.

Where plaintiff's claim to a certain item of damage was conditioned at trial on the jury finding in his favor upon another issue, and the jury found against him, he was not entitled to claim the item of damage mentioned on appeal. Appeal from Bexar County Court; Robt. B. Green, Judge.

Action by H. E. Hildebrand against G. M. Head. From a judgment for plaintiff, he appeals. Reformed and affirmed.

Cobbs & Hildebrand, for appellant. C. C. Clamp and Frank J. Bosshardt, for appellee.

JAMES, C. J. This appeal is from a judgment rendered upon a verdict which was in

favor of appellant (plaintiff) for $169.66 and interest, and for foreclosure of landlord's lien on certain syrup in plaintiff's possession, and in favor of defendant for the sum of $139.20 actual damages. The latter sum was for the damages sustained by defendant for the wrongful suing out of an injunction, which the court had instructed the jury would consist of what the evidence showed was the reasonable market value of the syrup that could have reasonably been made out of the cane by plaintiff, less the reasonable cost of converting it into syrup. Therefore the $139.20 damages was the finding of the net value of the syrup. When this was deducted from the sum of $169.66, found in favor of plaintiff (which was an admitted indebtedness from defendant to plaintiff), and judgment rendered for the difference, $43.18, defendant was compensated for the syrup, and the effect of the deduction was to pay defendant for the syrup and made it the property of plaintiff. It was therefore manifest error to adjudge plaintiff a lien on the syrup, and require it to be sold to satisfy the judgment for the difference. Hence we conclude that that part of the decree ordering the syrup sold to satisfy plaintiff's judgment for $43.18 and interest thereon, as under execution, and, after paying off said judgment, directing the officer to pay the excess over to defendant, should be expunged, and instead that the plaintiff be declared entitled to the syrup.

We think plaintiff is not entitled to claim in this court that he should be allowed a further sum of $76.30 for hauling the cane to the mill. The only charge by which he requested that matter to be submitted was conditioned on the jury finding in his favor upon the issue of wrongful suing out of the injunction. The jury, however, found against him on that is

sue.

Appellant has filed here a paper consenting to waive his assignments of error in case we hold as above. Therefore we do not notice them.

Appellee has a cross-assignment, which we think is not well founded. We fail to see wherein the written contract and the previous oral agreement show any substantial difference in the rights of the parties.

The judgment will be reformed as indicated, and, as reformed, will be affirmed.

RASCOE V. WALKER-SMITH CO. et al. (Court of Civil Appeals of Texas. May 17, 1905.)

REVERSAL-REMANDING CAUSE.

In a suit against a partnership and the executrix of a decedent, alleged to have been a partner when the notes sued on were executed, where the Supreme Court, in answer to a certified question, holds that the transactions occurring between a member of the partnership and decedent are not admissible against the executrix, and the remaining evidence tends to show decedent was not a partner, and the part

nership issue has been fully developed, the Court of Appeals will not remand, but render judgment for the executrix.

Appeal from Coleman County Court; B. F. Rose, Judge.

Action by the Walker-Smith Company against Cornelia E. Rascoe, as executrix of the estate of W. P. Rascoe, deceased. From a judgment for plaintiff, defendant Cornelia E. Rascoe appeals. Affirmed as to the other defendants, and reversed and rendered as to Cornelia E. Rascoe.

F. L. Snodgrass, for appellant. G. N. Harrison, for appellees.

FISHER, C. J. The appellee WalkerSmith Company brought this suit to recover on two promissory notes executed August 4, 1902, each for the sum of $250, signed by T. W. White & Co., by T. W. White. The suit was against the partnership of T. W. White & Co., and also T. W. White individually, and against the appellant Mrs. Rascoe, as executrix of the estate of W. P. Rascoe, deceased, claiming that W. P. Rascoe was during his lifetime a member of the firm of T. W. White & Co. T. W. White filed no answer. The appellant, as executrix, answered by general denial and special plea, denying the existence of any partnership between W. P. Rascoe and White. Judg. ment in the court below was against T. W White and T. W. White & Co., in favor of the appellees, for the amount sued for and costs of suit, and also against the appellant Mrs. Rascoe, as executrix of the estate of W. P. Rascoe, for the amount sued for. Mrs. Rascoe alone has appealed.

At a previous day of this term of the court we certified to the Supreme Court the question whether or not the evidence of witness White, as to statements and transactions that occurred between him and W. P. Rascoe, deceased, was admissible, as against appellant Mrs. Rascoe, to establish the fact of partnership. The Supreme Court, in answering the question, held that such testimony was not admissible. 86 S. W. 728.

The principal question in the case is whether or not W. P. Rascoe was ever a member of the firm of T. W. White & Co. The appellees contend that he was a member of the firm before the notes in question were executed, and that the notes were given for the purchase price of goods sold by appellees to T. W. White & Co., and that, if there was ever a dissolution of the firm, the appellees had no notice of that fact at the time the goods were sold and the notes executed, and that, if Rascoe was not in fact a member of the firm, he permitted T. W. White to represent that he was a member, and the appellees, acting upon such representation and holding out, sold the goods to T. W. White & Co. upon the basis that Rascoe was a member of the firm. There are a number of assignments of error in appellant's brief

which are not necessary to be considered, because, in view of the ruling of the Supreme Court upon the question certified, we have concluded to reverse and render so much of the judgment as affects the appellant Mrs. Rascoe. When we eliminate the evidence of White as to transactions and statements that occurred between him and Rascoe relating to the question of partnership, there is very little evidence, if any, of any importance left in the case upon that subject. In fact, the balance of the evidence upon the subject of partnership, as we construe it, tends to show that Rascoe was never a member of the firm of T. W. White & Co. It is true, some letters passed between the Walker-Smith Company and Rascoe with reference to signing certain notes, which notes are not those sued upon. The letters from the WalkerSmith Company to Rascoe were merely to the effect that certain notes were signed by White & Co., but that they desired the personal signature of Rascoe. Rascoe replied that he would sign, and as a matter of fact he did sign the notes individually. There is no intimation in the correspondence between these parties of any partnership between White and Rascoe; and it is believed that the fact evidenced by these letters has a stronger tendency to establish the fact that there was no partnership than to prove that a partnership existed; for if the WalkerSmith Company relied upon the representations of White that Rascoe was a member of the firm, and relied upon the fact that Rascoe had held himself out as a member of the firm, and that the Walker-Smith Company believed that he was a member of the firm, or that Rascoe in fact was a member of the firm, it is singular that the Walker-Smith Company would desire, in addition to the signature of the firm, the individual signature of Rascoe; and if Rascoe knew that he was held out as a member of the firm, or regarded that he was a member of the firm, it is also singular that he would, in addition to the execution of the note by the firm, individually sign the same. And it is further significant that in all this correspondence there is no statement or intimation whatever from either party tending to show that Rascoe was ever a member of the firm. As said before, the remaining evidence in the record on the issue of partnership, excluding that of White, tends to show that Rascoe was not a member of the firm.

On the issue of partnership, the case seems to have been fully developed, and that all evidence accessible on that subject was introduced. Therefore we see no occasion to reverse and remand, but will here reverse and render judgment in favor of the appellant Mrs. Rascoe to the effect that the appellee Walker-Smith Company take nothing by their suit against her individually or as executrix, and that she go hence fully discharged with a judgment in her favor for all costs incurred in her behalf in the trial

Where plaintiff alleged a partnership be tween defendant railroad company and another in carrying plaintiff's wife, and sought damages for her death from a failure on the part of the railroads to keep the car warm, and there was evidence of such negligence on the part of both roads, an instruction that, in order for plaintiff to recover, the burden was on him to show negligence of defendant, was reversible error, notwithstanding an instruction making defendant responsible for the negligence of both roads. 2. SAME-EVIDENCE-ADMISSIBILITY.

Defendant might, under the general issue, show that the wife, at the time she sustained the injuries, had a disease which would have caused her death as soon as she did die, independent of the injuries.

3. SAME-DECLARATIONS.

The declarations of the wife concerning her condition were admissible against plaintiff. 4. SAME-EVIDENCE-STATEMENTS AS TO MANNER OF INJURY.

In an action for injuries, statements by the person injured to her physician as to how she was injured were not admissible in favor of plaintiff.

5. SAME EVIDENCE-CREDIBILITY OF WIT

NESSES.

The belief or opinion of a witness to the effect that certain other persons would swear to the truth was not admissible.

Appeal from District Court, Hunt County; H. C. Connor, Judge.

Action by J. H. Hardin against the St. Louis Southwestern Railway Company of Texas. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Evans & Elder, for appellant. E. B. Perkins and Templeton, Crosby & Dinsmore, for appellee.

FISHER, C. J. This is a suit for damages by Hardin against the St. Louis Southwestern Railway Company of Texas for personal injuries to himself, and for injuries resulting in the death of his wife. Plaintiff substantially alleged as his cause of action that on the 20th of December, 1900, he purchased from the defendant at Josephine, Tex., two first-class tickets (one for himself and one for his wife) to Perryville, Tenn., via Texarkana and Memphis, and that they boarded said train as passengers on the 20th of December, 1900; that the weather was cold and disagreeable throughout the trip; that the defendant was a common carrier of passengers for hire from Josephine to Tex

*Rehearing denied June 28, 1905.

arkana, Tex.; and that the St. Louis Southwestern Railway Company was a common carrier of passengers for hire from Texarkana to Memphis, Tenn.; and he alleged a joint operation and partnership between these two railway companies in undertaking to carry plaintiff and his wife as passengers from Josephine, Tex., to Memphis, Tenn. Plaintiff alleged negligence on the part of both railway companies in failing to keep their coaches warm from Josephine to Memphis, and that, in consequence of such negligence, plaintiff and his wife each suffered from cold and exposure while being so carried over the lines of the two companies, resulting in personal discomfort, pain, and suffering to each, and incurring expense to plaintiff, and resulting in the death of his wife, and incurring expense during her sickness, for all of which he claims damages in the sum of $20,800. Verdict and judgment resulted in favor of the railway company.

Appellant's first and second assignments of error will be considered together. The first assignment complains of the action of the trial court in giving charge No. 2 requested by appellee, on the ground that the same is contradictory of the main charge, and was calculated to mislead the jury, in withdrawing from their consideration the negligence of the servants of the St. Louis Southwestern Railway Company, and because the testimony shows and raises the issue of the failure to furnish fires sufficient to warm the coaches in which the plaintiff and his wife were passengers, not only on the line of the St. Louis Southwestern Railway Company of Texas, but also on the line of the St. Louis Southwestern Railway Company, which is alleged to run from Texarkana to Memphis. The second assignment of error complains of the first paragraph of the charge of the court, wherein the jury are instructed that the burden was upon the plaintiff to show by a preponderance of the evidence that the defendant was negligent, as alleged, and that such negligence proximately caused or hastened the death of his wife. There is evidence in the record which tends to show that, by reason of the negligence alleged upon the part of the two roads, the wife sustained the injuries that resulted in her death; and there is evidence to the effect that each of the roads failed to provide fires sufficient to warm and heat the cars in which the plaintiff and his wife were riding as passengers, though the weather was very cold and disagreeable. The petition of the plaintiff also alleged that there was a partnership between the two roads, and substantially alleged that by reason of such partnership the appellee was responsible for the negligence committed by both roads, and there was no denial of the partnership charged in the petition. The first paragraph of the charge of the court which is complained of is as follows:

"The burden of proof is upon the plaintiff

to show by a preponderance of the evidence that the defendant was negligent as alleged, and that such negligence proximately caused or hastened the death of his wife, as hereinafter explained."

The special charge requested, and which was given, and which is complained of, is as follows:

"In view of the court's charge, counsel for defendant request the court to instruct the jury as follows: The burden of the proof is upon the plaintiff to show by the evidence that defendant's servants were negligent, and that such negligence was the proximate cause of the death of Mrs. Edna Hardin, the wife of plaintiff, or that the life of Mrs. Edna Hardin was shortened, and that such shortening of her life was caused by the negligence of defendant's servants."

The court, in its general charge, in effect, instructed the jury that the appellee railway company would be responsible for the negligence of both railway companies, and this charge, in view of the pleadings and evidence, was correct; but it practically conflicts with the special charge No. 2, as set out, and also the first paragraph of the general charge of the trial court as above stated. These two charges substantially instruct the jury that, in order for the appellant to make his case, the burden rested upon him to establish the negligence of the defendant-that is, that the St. Louis Southwestern Railway Company of Texas was guilty of the negligence charged-when, under the pleadings and evidence, the plaintiff would have been entitled to recover on the proof of facts tending to show negligence on the part of the St. Louis Southwestern Railway Company. The jury might have considered that the evidence was insufficient to have established the negligence of the appellee railway company, or that the negligence, if any, of that company was not the proximate cause of the death of appellant's wife, but may have considered that the evidence against the St. Louis Southwestern Railway Company was sufficient to show negligence which was the proximate cause of the death of Mrs. Hardin. We are of the opinion that these assignments are well taken, and, for the error in the respect pointed out, the judgment will be reversed.

The third assignment of error complains of the sixth paragraph of the general charge of the court, which also contained a statement that the negligence of the defendant aggravated the disease, when, as before stated, the charge should have been so framed as to submit the negligence of both railway companies; and in this respect paragraph 6 of the charge is erroneous.

There are some other objections to this charge. One is to the effect that the charge is without pleadings to support it. In answer to this, we simply state that we are of the opinion that it was permissible, under the general issue, for the railway company