From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. W. Terry and A. H. Culwell, for appellant. Hale, Allen & Dohoney, for appellee.

EIDSON, J. This suit was originally filed in the Eighth Judicial District, Delta county, and by agreement same was transferred to the Sixty-Second Judicial District, in Lamar county. The suit was brought by the appellee to recover damages for injuries to crops and realty by reason of two overflows of Sulphur creek, occurring in September 1902, and July, 1903; it being alleged that appellee's land was caused to overflow and the crops to be destroyed by reason of insufficient culverts and openings, and by reason of a high dump or embankment erected by the railroad company under and along its tracks crossing said creek; it being charged that the railway company was guilty of negligence in the premises. Appellee alleged in substance that he owned about 77 acres of land in Sulphur bottom, in Delta county, just below appellant's railroad; that appellant constructed a dump or embankment for its roadbed about 8 or 10 feet high across Sulphur bottom, a distance of about 11⁄2 miles; that it put a dam in Sulphur for the purpose of storing up the water for its use, and in the construction of its roadbed and embankment it built two culverts in the bottom, one on the Lamar and one on the Delta county side of the creek, but that said culverts were too small, and not sufficient to admit the passage in its natural way of the water that flows down said bottom during overflows; that the aforesaid dam had caused the channel of the creek to fill up with mud and drift, and prevented the creek from carrying off the water in its natural way, and caused it to overflow the bottom; that, when the creek overflowed, the obstructions caused by dam and embankment, without sufficient culverts and openings, caused the water to accumulate and back up above the railroad, and forced it through the culvert in a strong stream, onto and across appellee's land, and destroyed his crops, and covered his farm with mud and drift, and filled up his ditches, to his damage, and that by reason of the obstructions and insufficient openings the water was accumulated and held above said embankment, and an unnatural current was created, that washed and damaged his land and crops, and large quantities of water were thereby run upon appellee's land, that but for such obstructions and insufficient openings would not have run there. Appellant answered by general demurrer and general denial. The case was tried before a jury, and resulted in a verdict and judgment in favor of appellee in the sum of $500. Further judgment was entered requiring the railway company to remove from the bed and channel of Sulphur creek the dam which remained therein.

Appellant presents in its brief first what it

claims to be fundamental error, and contends that the judgment rendered herein is and was an absolute nullity, and that the court never acquired jurisdiction of the subject-matter in dispute, and that no proper or legal judgment could be or was rendered, because the act of the Legislature creating the Sixty-Second Judicial District was and is unconstitutional and void. The question raised by this assignment was decided adversely to appellant's contention in the case of Railway Co. v. Hall (Tex. Sup.) 85 S. W. 786.

By its first assignment of error, appellant insists that the verdict of the jury is not supported by the evidence. We are of the opinion that there is testimony in the record tending to show, and from which the jury was authorized to find, that the dam in the channel of Sulphur creek, and the embankment along through the bottom of said creek, and the insufficient openings in the embankment caused at least a portion of the damage suffered by appellee. The testimony tended to show that the water did not pass off in its natural way, and that although appellee's land would have been overflowed, had there been no dam or embankment there, his injuries were greatly increased by reason of the water being caused to stand on his crops longer than it would have otherwise. and on account of the water flowing through the culverts more rapidly over his land than it would have in the absence of such embankment and dam, and thereby washing his land and filling up his ditches.

Appellant's second assignment of error complains of the verdict of the jury upon the ground that the amount found in favor of appellee is excessive. We do not agree with appellant in this contention. Appellee testified that he had 70 acres in cotton both in 1902 and 1903, which would have made a bale to the acre, and his part was half; that his tenant was to be at all expense of raising, gathering, and marketing; that cotton was worth 7 or 8 cents per pound at the time of the alleged destruction of his crops, and that a bale of cotton is 500 pounds; that he would have received from said land seven or eight tons of cotton seed, worth from $12 to $16 per ton; that he only received two or three little mud bales; that his land was in good condition and in a good state of cultivation prior to the overflow; that the overflow covered it with mud and drift, and filled up his ditches; that it cost him at least $250 to put it back in the condition it was prior to the first overflow after that overflow, and it will cost the same to clear up and open up the ditches; that he hadn't done this since the last overflow. We are of the opinion that the jury were justified, in view of this testimony of appellant, in connection with the other testimony tending to show the difference in the effect of the overflow upon appellee's lands and crops after the construction of the embankment and dams by appellant,

and what would have been the effect of such overflow in the absence of such dam and embankment, in finding that appellee's crop and land were damaged to the extent of $500, the amount of the verdict.

Appellant's third assignment of error complains of the action of the court in rendering judgment on the verdict of the jury, enjoining appellant from further obstructing and interfering with the natural flow of the water in said bottom, and from further impeding, obstructing, or interfering with the drainage, etc., and ordering that a mandatory writ of injunction be issued to the appellant, commanding it to remove the portion of the dam remaining, and ordering it to construct all such necessary culverts and sluices in its embankment across said Sulphur creek bottom as the natural lay of the land adjacent thereto may require for the necessary drainage thereof. Appellant's grounds of complaint are that the verdict and finding of the jury are without evidence to support them, and that the judgment is too vague, ambiguous, and uncertain, in that it does not point out specifically and show the appellant what additional sluices and culverts it would be necessary to make in order to comply with the judgment of the court. Article 4436, Sayles' Ann. Civ. St. 1897, provides as follows: "In no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires for the necessary drainage thereof." The statute imposes upon a railroad company the duty of first constructing the necessary culverts or sluices as the natural lay of the land requires for the necessary drainage thereof, before it has the right to construct its roadbed, or, rather, complete the construction of its roadbed. This being true, if it fails to construct sufficient culverts and sluices for the necessary drainage of the land over which its roadbed is being constructed as the natural lay of the land requires, and damage to the property of others results from such failure, an injunction will lie to compel such railroad company to construct the necessary culverts or sluices; and in the event the railroad company has constructed a dam across the channel of a stream over which its road passes, and such dam creates a nuisance by diverting the water from its natural channel and causing it to overflow and injure the lands of adjacent proprietors, an injunction will lie in favor of such proprietors against the railway company to compel the removal of such dam. I. & G. N. R. Co. v. Davis (Tex. Civ. App.) 29 S. W. 483; Railway Co. v. Tait, 63 Tex. 226; Clark v. Dyer, 81 Tex. 342, 16 S. W. 1061; Sullivan v. Dooley (Tex. Civ. App.) 73 S. W. 84; Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994. And as the statutory provision imposes upon the railroad company the absolute duty to construct sufficient culverts or sluices for the necessary drainage of the land according

to the natural lay thereof, it is the duty of the railroad company to ascertain what is necessary to accomplish this purpose, and it does not devolve upon those who have been injured by the railroad company's neglect of this statutory duty to show it how to perform that duty. The jury having found that the portion of the dam remaining and the embankment and culvert cause and will cause to appellee injury in the future, as complained of by him, and there being evidence to support such finding, there was no error in the action of the court below in decreeing and directing a mandatory injunction requiring the appellant to remove such dam, and to construct the necessary culverts or sluices.

Appellant's fourth assignment of error complains of the action of the court in permitting appellee, over its objections, to testify to the number, length, and depth of ditches on his premises, and as to the expense necessary to have them cleaned out and put in same condition as they were prior to the overflow, on the ground that there was no allegation in appellee's petition as to the number, length, and depth of same, or what would be the cost of digging same prior to the overflow. Appellee alleged in his petition "that by reason of said overflow of September 19, 1902, his ditches on said land were filled up, and his land badly washed and damaged, to his further damage in the sum of $150; that by reason of said overflow of July, 1903, plaintiff's land was badly washed and damaged and covered over with mud and driftwood, and his ditches on said land filled up, to his further damage in the sum of $2,000." This was sufficient to admit the proof objected to, in the absence of a special exception, and there was no such exception interposed by appellant to said pleading.

By its fifth assignment of error, appellant complains of the action of the court below in excluding from the jury the answers of the witnesses Hiram Gross, Dan Sales, and Tom J. Carter to the following questions: "From your knowledge of the country, both before and after the railroad was built, and from your knowledge of the embankment, dam, and culvert, and railroad across the bottom, would any damage by wash to Harbison's land have been caused by the railroad dam and embankment in September, 1902, and July, 1903?" The answers of witnesses being: "I think not." "That is my opinion." "I don't know." "I don't see how it could." Appellant's contention under this assignment being that where it is shown that witnesses are familiar with the location complained of, and have observed the same for many years prior to the date of the alleged injury, and are in a position, from such observation and experience, to have an opinion concerning the effect on the locality of a railroad embankment and dam, it is competent to prove such opinion by such witnesses.

The opinions of these witnesses would have been admissible, had they stated the facts upon which their opinions would be based, and had it appeared from such facts that they were qualified to give an intelligent opinion with respect to the matter inquired about.

While it appears from appellant's bill of exceptions to the action of the court in excluding the answers of the witnesses above named that they lived on and near Sulphur creek, and owned lands in its bottom for a number of years prior to the construction of appellant's railroad embankment and dam, and lived on and near said creek and owned land in its bottom since the construction of its railroad embankment and dam, and were acquainted with the histor of the stream prior to the construction of the railroad and subsequent thereto, and had noted and observed the effect of overflows on lands of appellee and adjacent lands both before and after the defendant's railroad was built, it does not appear that they were sufficiently familiar with the embankment and dam or the length or height thereof, or the area of the water ways, the drainage area, or the character or size of the culverts or openings in such embankment, or the capacity thereof to carry off the water of an overflow, to give an intelligent opinion as to whether or not said embankment and dam or culvert caused any damage by wash to appellee's land. There is nothing in the bill of exceptions to indicate that these witnesses knew anything as to the effect of the embankment on the natural flow of the water, or knew whether there was any difference in the volume or velocity of the water as it flowed over appellee's land before and after the construction of the railroad embankment; hence we are of opinion that the court did not err in the action complained of under this assignment.

There was no error in the action of the court complained of in appellant's sixth assignment of error. The appellee was not seeking to recover on the ground that the sediment had injured his land, and therefore it was not material that such sediment would not tend to injure his land, but would increase its value. In the case of Austin & Northwestern Railroad Company v. Anderson, 79 Tex. 434, 435, 15 S. W. 486, 23 Am. St. Rep. 350, the Supreme Court say: "The defendant complains because the court refused a special charge asked to the effect that in case the jury should find the land and crops were injured by the water passing through the culverts and sluices, but should also find that such water was less injurious to the whole of the land and crops than it would have been if the roadbed had not been constructed, and it had overflowed according to the natural lay of the land, the verdict should be for defendant. Such a charge should not have been given. The act of so constructing the embankment and culverts was wrongful, and it could not be made

right by such a consideration. Such a comparison of detriments and betterments is not applicable to cases like this. It might be in a proceeding to condemn land for railroad purposes."

Appellant's seventh assignment of error complains of the action of the court in permitting plaintiff to show by several witnesses that since the institution of this suit the appellant removed a portion of the dam complained of from Sulphur creek, and that since said dam had been removed, and on or about the 4th day of June, 1904, subsequent to the time complained of in appellee's petition, there was an overflow of Sulphur creek which was higher than any previous overflow of said creek known to said witnesses, and that, with a portion of the dam taken out, said overflow of the 4th of June, 1904, passed off of appellee's land and the creek got back in its banks in from 12 to 14 hours, and that this was a much shorter time for said creek to subside and get within its banks than would have been the case if said dam had been in said creek. Appellant's ground of objection to said testimony is that the removal of the dam being an act of appellant subsequent to the injuries complained of, and being sought to be used by appellee as an admission on the part of appellant that its dam caused the injuries to appellee, and said overflow of 1904 not having been shown to have occurred under the same conditions as the previous overflow, and being subsequent to the overflows complained of by appellee, it was irrelevant and not admissible. In our opinion, the testimony complained of was admissible for the purpose of showing the difference in the action of the water during overflows with the dam in the creek and with it out, and for the purpose of showing that the part remaining obstructed the flow of the water, and contributed to injuries caused by the overflow; and it was properly limited by the court in its charge to the jury, and they were instructed not to consider it as an admission of negligence upon the part of appellant. In the case of Railway v. Dunlap et al. (Tex. Civ. App) 26 S. W. 655, which was a suit for damages against the railway company for the negligent construction of an embankment which was alleged to have caused plaintiff's land to be overflowed, the court say: "The evidence of the cutting by defendant of its embankment during the overflow of 1891 was admissible, not for the purpose of showing that it thereby admitted that it was negligent in constructing its road, but simply to aid in determining the effect which the embankment had in holding the water and causing the overflow of the land." And in Railway Company v. Anderson et al. 61 S. W. 425, 2 Tex. Ct. Rep. 3, which was also a suit for damages on account of overflow of plaintiff's premises caused by obstruction allowed to remain in ditch on appellant's right of way, the court uses this

language: "Appellant's first assignment of error predicates error upon the ruling of the trial court in permitting appellees to prove, over the objections of appellant, that the appellant removed the obstruction in said ditch about the 15th of August, and that after said obstruction was removed the water ran off appellee's premises. We are of the opinion that the trial court did not err in admitting this testimony. Appellees alleged in their petition that the overflow of their premises was caused by the obstruction of the ditch, and that as soon as said obstruction was removed the water ran off. The issue in the case was not whether or not the obstruction existed, but whether or not it was the cause of the overflow of appellees' premises. It would certainly have been permissible for appellant to have shown on this issue that, after the obstruction of the ditch had been removed, water continued to accumulate upon appellees' premises, and thereby demonstrate that said obstruction' was not the cause of the overflow; and we think it was equally permissible for the appellees to show that the removal of the obstruction caused the water to recede from their premises. We do not think the admission of the testimony contravenes the well-established rule that proof of subsequent repairs is not admissible for the purpose of proving prior negligence. As above stated, the evidence was not admitted for the purpose of showing negligence, but to show that the condition of the ditch was the cause of the overflow of appellees' premises."

Appellant in its eighth assignment of error complains of the fifth paragraph of the general charge of the court, which is as follows:

"The court further instructs you that if you believe from the evidence that since the time of the overflow alleged in plaintiff's petition the defendant has cut the dam, if any, placed by it in the channel of Sulphur creek, that the act of cutting the same, if it was cut, must not be construed by you as an admission on the part of the defendant that said dam, embankment, and culverts caused any or all of the injuries complained of by plaintiff; but if you should find from the evidence that since the institution of this suit the defendant has removed a portion of said dam from the channel of said creek, and that a portion thereof still remains in said channel, and that the portion of said dam, if any, and said embankment and culvert, causes and will cause to plaintiff injury in the future, as complained of by him, then you will so say in your verdict."

We are of the opinion that the above paragraph is a correct enunciation of the law as applied to the pleadings and evidence in the Railway Co. v. Davis (Tex. Civ. App.) 29 S. W. 483; Railway Co. v. Dunlap, supra; Railway Co. v. Anderson, supra.

case.

Appellant's ninth assignment of error complains of the action of the court in giving

to the jury special charge No. 2 asked by appellee, which is as follows:

"Even if you should believe from the evidence that the overflows alleged in plaintiff's petition would have passed over and on to plaintiff's land and crops if the defendant's embankment and dam had not been there, still, if you believe from the evidence that by reason of said dam and embankment, or either, or by reason of the culverts or openings in said embankment being insufficient, if they were insufficient, to permit the water naturally flowing there to pass off in its natural way, and if you believe that by reason of such obstructions, if any, the water was caused to accumulate above defendant's road, and flow across plaintiff's land in greater volume and with greater speed, and remain on said land longer than it would have without such dam and embankment, and thereby caused the damage complained of, or any part thereof, you will find for plaintiff for such additional damage."

In view of the pleadings and evidence in this case, we are of the opinion that it was proper for the court to give the above charge. Albers v. Railway Co. (Tex. Civ. App.) 81 S. W. 828.

Appellant's assignments of error from 10 to 17, inclusive, each submitted as a proposition, are not in compliance with the rules of the court, in that there are no statements, as required by such rules, subjoined to said assignments, and therefore same will not be considered. The only statement given under any of these assignments of error is a reference to the statement under its first assignment of error, and that statement embraces practically all of the evidence in the record; and in order for us to ascertain what evidence, if any, there is in the record applicable to any of these assignments of error, it would be necessary for us to read the entire statement under appellant's first assignment of error, which covers 23 pages of its brief. We do not think that the rules of this court contemplate that any such labor should be imposed upon this court. Rule 31 for Courts of Civil Appeals (67 S. W. xvi); King v. Summerville, 80 S. W. 1050, 10 Tex. Ct. Rep. 478; Galloway v. Floyd, 81 S. W. 805, 10 Tex. Ct. Rep. 517.

There being no reversible error pointed out in the record, the judgment of the court below is affirmed. Affirmed.

GULF, C. & S. F. RY. CO. v. WETHERLY.* (Court of Civil Appeals of Texas. May 31, 1905.)

Appeal from District Court, Lamar County; T. D. Montrose, Judge.

Action by J. R. Wetherly against the Gulf, Colorado & Santa Fé Railway Company. *Rehearing denied June 28, 1905.