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lant offered testimony tending to show that ing a railroad to remove a dan, and ordering after the train pulled by engine No. 201 stop- it to comit all necessary culrerts and slaices bei at Ladonia, and just before the fire was

in its estankment across a certain creek bot. diurnvered, it was started again to do some, thereto may require for the ecessary drainage

tom as the natural lay of the land adjacent switrbing, and, as it did so, loud puffing from thereof, is not objectionable as failing to point Its exhaust was beard. The engineer in

out speriScalls and show the railroad what charge testified on the trial, and stated that

additiosal sidices and culverts it would be

Decessary to take to comply with the judg. his engine "did po bard puffing, and made Doment of the court. loud noise from its exhaust, while at Lado 3. OPINION EVIDENCE QCALIFICATION OF nia. I operated said engine on said occasion

WITNESS. as best I knew. It was impossible for it (the known anything as to the effect on the natural

Witnesses who were not shown to have barn) to have caught from my engine as

filow of the water of a stream by the construcsteam was shut off a mile back, and notion of an embankment adjacent thereto, nor farks were being thrown." Neither the whether there was any difference in the volume competency of the engineer nor bis credibil.

or velocity of the water as it flowed over plain

tiff's land before and after the construction of Ity was in issue, and evidence that he was a

the embankment, were not qualified to give their cautious engineer and in the habit of exer- opinions on the subject. (ising care and caution in the operation of 4. WATERS-OVERFLOW-DAYAGES. his engine to prevent the escape of sparks

In an action against a railroad for injury wa, inadmissible, under the facts, to show

to crops and realty by overflows alleged to have that on the occasion in question he prudent

been caused by insufficient drainage, where the

plaintiff was not seeking to recorer on the ly managed and controlled his engine. Ry. ground that the sediment had injured his land, Co. v. Johnson, 92 Tex. 380, 48 S. W. 568;

it was immaterial that the sediment would not Mayton v. Sonnefield (Tex, Civ. App.) 48 9.

tend to injure bis land, but would increase its

value, W. 608. We think, bowever, the error in the

5. SAME-EVIDENCE-ADMISSIBILITY. admission of this testimony was cured by In an action against a railroad for intestimony of a like character admitted with- jury to crops and realty by orerflow of a stream out objection, but deem it best, inasmuch as in which it had constructed a dam, evidence the case will have to be reversed on other

that after the institution of the suit the defend

ant removed a portion of the dam, that after its grounds, to express our views on the ques.

removal an overflow of the stream higher than tion, that a repetition of the error may not ever before known had occurred, and that the occur upon another trial.

water passed off of plaintiff's land and the For the reasons indicated, the judgment is

stream got within its banks sooner than would

have been the case, had the dam been in the reversed, and cause remanded.

stream, 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 that the part remaining ob

structed the flow of water, and contributed to GULF, C. & S. F. RY. CO, V. HARBISON.* injuries caused by the overflow. (Court of Civil Appeals of Texas. May 24,

6. SAME – OBSTRUCTION – LIABILITY-MEAS.

URE OF RECOVERY. 1905.)

The mere fact that an overflow of an up1. DAMAGE TO CROPS AND REALTY-VERDICT per riparian owner's land would have occurred --EXCESSIVENESS.

in the absence of a dam in the stream, and an In an action against a railroad for injury

embankment negligently constructed adjacent to crops and realty by overflows, plaintiff tes

thereto, does not excuse the wrongdoer from liatified that he bad 70 acreg in cotton in each of

bility for the additional damage to the riparian two years in question, which would have made owner's crops and realty caused by insuffia bale to the acre, and his part was half; that

cient culverts or openings to permit the water his tenant was to be at all expense of raising,

naturally flowing in the stream to pass off in gathering, and marketing ; that cotton

its natural way, resulting in the accumulation worth 7 or 8 cents per pound at the time of

of water above the obstructions flowing across the alleged destruction of his crops; that a

the land in greater volume and with greater bale of cotton weighs 500 pounds; that he

speed, and remaining on the land longer than it would have received from the land seven

would, had the obstructions not been there. eight tons of cotton seed, worth from $12 to 7. APPEAL-ASSIGNMENTS OF ERROR-BRIEFS $16 per ton; that he only received two or three -SUFFICIENCY. little mud bales; that his land was in good con- Where 23 pages of appellant's brief were dition and in a good state of cultivation prior devoted to the statement under its first assignto the overflow; that the overflow covered it

ment of error, which embraced practically all with mud and drift, and filled up his ditches; of the evidence in the record, subsequent assignthat it cost him at least $250 to put it back in ments of error, followed by no other statethe condition it was prior to the first overflow ment than a reference to the statement under after that overflow, and would cost the same to the first assignment will not be considered, in clear up and open the ditches; that he hadn't

view of rule 31 for the Courts of Civil Appeals done this since the last overflow. Held, that a

(07 S. W. xvi), requiring each proposition unverdict for plaintiff for $300 was not excessive. der an assignment to be followed by a brief 2. RAILROADS CULVERTS INJUNCTION- statement in substance of such proceedings or SUFFICIENCY.

part thereof contained in the record as will be Under Sayles' Ann. Civ. St. 1897, art. 4436, necessary and sufficient to explain and support providing that in no case shall any railroad the proposition. construct a roadbed without first constructing the necessary culverts or sluices as the natural Appeal from District Court, Lamar County; lay of the land requires for the necessary drain- T. D. Montrose, Judge. age thereof, a mandatory injunction command

Action by F. Harbison against the Gulf, *Rehearing denied June 28, 1905.

Colorado & Santa Fé Railway Company.

was

or

From a judgment in favor of plaintiff, de- claims to be fundamental error, and confendant appeals. Affirmed.

tends that the judgment rendered herein is J. W. Terry and A. H. Culwell, for appel

and was an absolute nullity, and that the lant. Hale, Allen & Dohoney, for appellee.

court never acquired jurisdiction of the sub

ject-matter in dispute, and that no proper or EIDSON, J. This suit was iginally filed

legal judgment could be or was rendered, in the Eighth Judicial District, Delta coun

because the act of the Legislature creating ty, and by agreement same was transferred

the Sixty-Second Judicial District was and is to the Sixty-Second Judicial District, in La

unconstitutional and void. The question mar county. The suit was brought by the

raised by this assignment was decided adappellee to recover damages for injuries to

versely to appellant's contention in the case crops and realty by reason of two overflows

of Railway Co. v. Hall (Tex. Sup.) 85 S. W. of Sulphur creek, occurring in September

786. 1902, and July, 1903; it being alleged that

By its first assignment of error, appellant

insists that the verdict of the jury is not appellee's land was caused to overflow and

We are of the the crops to be destroyed by reason of insuffi supported by the evidence. cient culverts and openings, and by reason

opinion that there is testimony in the recof a high dump or embankment erected by

ord tending to show, and from which the the railroad company under and along its

jury was authorized to find, that the dam in tracks crossing said creek; it being charged

the channel of Sulphur creek, and the emthat the railway company was guilty of neg.

bankment along through the bottom of said ligence in the premises. Appellee alleged in

creek, and the insufficient openings in the substance that he owned about 77 acres of

embankment caused at least a portion of land in Sulphur bottom, in Delta county, just

the damage suffered by appellee. The testibelow appellant's railroad; that appellant

mony tended to show that the water did not constructed a dump or embankment for its

pass off in its natural way, and that although roadbed about 8 or 10 feet high across Sul

appellee's land would have been overflowed, phur bottom, a distance of about 142 miles;

had there been no dam or embankment there, that it put a dam in Sulphur for the purpose his injuries were greatly increased by reaof storing up the water for its use, and in

son of the water being caused to stand on his the construction of its roadbed and embank

crops longer than it would have otherwise. ment it built two culverts in the bottom, one

and on account of the water flowing through on the Lamar and one on the Delta county

the culverts more rapidly over his land than side of the creek, but that said culverts

it would have in the absence of such embankwere too small, and not sufficient to admit

ment and dam, and thereby washing his land the passage in its natural way of the water

and filling up his ditches. that flows down said bottom during over- Appellant's second assignment of error flows; that the aforesaid dam had caused

complains of the verdict of the jury upon the channel of the creek to fill up with mud

the ground that the amount found in favor and drift, and prevented the creek from car

of appellee is excessive. We do not agree rying off the water in its natural way, and

with appellant in this contention. Appellee caused it to overflow the bottom; that, when

testified that he had 70 acres in cotton both the creek overflowed, the obstructions caused

in 1902 and 1903, which would have made a by dam and embankment, without sufficient

bale to the acre, and his part was half; that culverts and openings, caused the water to

his tenant was to be at all expense of raisaccumulate and back up above the railroad, ing, gathering, and marketing; that cotton and forced it through the culvert in a strong was worth 7 or 8 cents per pound at the stream, onto and across appellee's land, and

time of the alleged destruction of his crops, destroyed his crops, and covered his farm and that a bale of cotton is 500 pounds; that with mud and drift, and filled up his ditches,

he would have received from said land seven to his damage, and that by reason of the ob- or eight tons of cotton seed, worth from $12 structions and insufficient openings the wa

to $16 per ton; that he only received two or ter was accumulated and held above said three little mud bales; that his land was in embankment, and an unnatural current was good condition and in a good state of cultivacreated, that washed and damaged his land tion prior to the overflow; that the overflow and crops, and large quantities of water were covered it with mud and drift, and filled up thereby run upon appellee's land, that but his ditches; that it cost him at least $250 for such obstructions and insufficient open. to put it back in the condition it was prior ings would not have run there. Appellant to the first overflow after that overflow, and answered by general demurrer and general it will cost the same to clear up and open up denial. The case was tried before a jury, the ditches; that he hadn't done this since and resulted in a verdict and judgment in the last overflow. We are of the opinion that favor of appellee in the sum of $500. Fur- the jury were justified, in view of this testither judgment was entered requiring the rail- mony of appellant, in connection with the way company to remore from the bed and other testimony tending to show the differchannel of Sulphur creek the dam which re- ence in the effect of the overflow upon appelmained therein.

lee's lands and crops after the construction Appellant presents in its brief first what it of the embankment and dams by appellant, and what would have been the effect of such to the natural lay thereof, it is the duty of overflow in the absence of such dam and the railroad company to ascertain what is embankment, in finding that appellee's crop necessary to accomplish this purpose, and it and land were damaged to the extent of does not devolve upon those who have been $300, the amount of the verdict.

injured by the railroad company's neglect Appellant's third assignment of error com- of this statutory duty to show it bow to perplains of the action of the court in rendering form that duty. The jury having found that judgment on the verdict of the jury, en- the portion of the dam remaining and the joining appellant from further obstructing embankment and culvert cause and will and interfering with the natural flow of the cause to appellee injury in the future, as water in said bottom, and from further im- complained of by him, and there being evipeding, obstructing, or interfering with the dence to support such finding, there was no drainage, etc., and ordering that a manda- error in the action of the court below in detory writ of injunction be issued to the ap- ! creeing and directing a mandatory injunction pellant, commanding it to remove the portion requiring the appellant to remove such dam, of the dam remaining, and ordering it to and to construct the necessary culverts or construct all such necessary culverts and sluices. sluices in its embankment across said Sul- Appellant's fourth assignment of error comphur creek bottom as the natural lay of the plains of the action of the court in permitland adjacent thereto may require for the ting appellee, over its objections, to testify necessary drainage thereof. Appellant's to the number, length, and depth of ditches grounds of complaint are that the verdict on his premises, and as to the expense necesand finding of the jury are without evidence sary to have them cleaned out and put in to support them, and that the judgment is too same condition as they were prior to the vague, ambiguous, and uncertain, in that it overflow, on the ground that there was no does not point out specifically and show the allegation in appellee's petition as to the appellant what additional sluices and cul- number, length, and depth of same, or what verts it would be necessary to make in order would be the cost of digging same prior to to comply with the judgment of the court. the overflow. Appellee alleged in his petiArticle 4436, Sayles' Ann. Civ. St. 1897, pro- tion “that by reason of said overflow of Sepvides as follows: "In no case shall any rail- tember 19, 1902, his ditches on said land road company construct a roadbed without were filled up, and his land badly washed first constructing the necessary culverts or and damaged, to his further damage in the sluices as the natural lay of the land re- sum of $150; that by reason of said overflow quires for the necessary drainage thereof." of July, 1903, plaintiff's land was badly The statute imposes upon a railroad company washed and damaged and covered over with the duty of first constructing the necessary mud and driftwood, and his ditches on said culverts or sluices as the natural lay of the land filled up, to his further damage in the land requires for the necessary drainage sum of $2,000.” This was sufficient to admit thereof, before it has the right to construct the proof objected to, in the absence of a its roadbed, or, rather. complete the con- special exception, and there was no such exstruction of its roadbed. This being true, if ception interposed by appellant to said pleadit fails to construct sufficient culverts and . ing. sluices for the necessary drainage of the land By its fifth assignment of error, appellant over which its roadbed is being constructed complains of the action of the court below as the natural lay of the land requires, and in excluding from the jury the answers of damage to the property of others results the witnesses Hiram Gross, Dan Sales, and from such failure, an injunction will lie to Tom J. Carter to the following questions: compel such railroad company to construct “From your knowledge of the country, both the necessary culverts or sluices; and in the before and after the railroad was built, and event the railroad company has constructed from your knowledge of the embankment, a dam across the channel of a stream over dam, and culvert, and railroad across the which its road passes, and such dam creates bottom, would any damage by wash to Hara nuisance by diverting the water from its bison's land have been caused by the railnatural channel and causing it to overflow road dam and embankment in September, and injure the lands of adjacent proprietors, 1902, and July, 1903 ?” The answers of wit. an injunction will lie in favor of such pro- nesses being: "I think not." "That is my prietors against the railway company to opinion." "I don't know.” “I don't see how compel the removal of such dam. 1. & G. N. it could.” Appellant's contention under this R. Co. v. Davis (Tex. Civ. App.) 29 S. W. assignment being that where it is shown that 483; Railway Co. v. Tait, 63 Tex. 226; Clark witnesses are familiar with the location comv. Dyer, 81 Tex. 342, 16 S. W. 1061; Sullivan plained of, and have observed the same for v. Dooley (Tex. Civ. App.) 73 S. W. 81; Sum- many years prior to the date of the alleged ner v. Crawford, 91 Tex. 129, 41 S. W. 994. injury, and are in a position, from such obAnd as the statutory provision imposes upon servation and experience, to have an opinion the railroad company the absolute duty to concerning the effect on the locality of a construct sufficient culverts or sluices for railroad embankment and dam, it is compethe necessary drainage of the land according tent to prove such opinion by such witnesses. The opinions of these witnesses would have right by such a consideration. Such a combeen admissible, had they stated the facts parison of detriments and betterments is not upon which their opinions would be based, applicable to cases like this. It might be in and had it appeared from such facts that a proceeding to condemn land for railroad they were qualified to give an intelligent | purposes." opinion with respect to the matter inquired Appellant's seventh assignment of error about. While it appears from appellant's complains of the action of the court in perbill of exceptions to the action of the court mitting plaintiff to show by several witnessin excluding the answers of the witnesses es that since the institution of this suit the above named that they lived on and near appellant removed a portion of the dam comSulphur creek, and owned lands in its bot- plained of from Sulphur creek, and that tom for a number of years prior to the con- since said dam had been removed, and on or struction of appellant's railroad embankment about the 4th day of June, 1904, subsequent and dam, and lived on and near said creek to the time complained of in appellee's peand owned land in its bottom since the con- tition, there was an overflow of Sulphur struction of its railroad embankment and creek which was higher than any previous dam, and were acquainted with the histor, overflow of said creek known to said witof the stream prior to the construction of | nesses, and that, with a portion of the dain the railroad and subsequent thereto, and had taken out, said overflow of the 4th of June, noted and observed the effect of overflows 1904, passed off of appellee's land and the on lands of appellee and adjacent lands both creek got back in its banks in from 12 to 14 before and after the defendant's railroad ( hours, and that this was a much shorter was built, it does not appear that they were time for said creek to subside and get withsufficiently familiar with the embankment in its banks than would have been the case and dam or the length or height thereof, or if said dam had been in said creek. Appelthe area of the water ways, the drainage lant's ground of objection to said testimony area, or the character or size of the culverts is that the removal of the dam being an act or openings in such embankment, or the ca- i of appellant subsequent to the injuries compacity thereof to carry off the water of an plained of, and being sought to be used by overflow, to give an intelligent opinion as to appellee as an admission on the part of apwhether or not said embankment and dam pellant that its dam caused the injuries to or culvert caused any damage by wash to ap

1

appellee, and said overflow of 1904 not hav. pellee's land. There is nothing in the billing been shown to have occurred under the of exceptions to indicate that these witnesses same conditions as the previous overflow, knew anything as to the effect of the em- and being subsequent to the overflows combankment on the natural flow of the water,

plained of by appellee, it was irrelevant and or knew whether there was any difference not admissible. In our opinion, the testiin the volume or velocity of the water as it

mony complained of was admissible for the flowed over appellee's land before and after

purpose of showing the difference in the acthe construction of the railroad embank

tion of the water during overflows with the ment; hence we are of opinion that the

dam in the creek and with it out, and for the court did not err in the action complained of purpose of showing that the part remaining under this assignment.

obstructed the flow of the water, and conThere was no error in the action of the tributed to injuries caused by the overtlow: court complained of in appellant's sixth i and it was properly limited by the court in assignment of error. The appellee was not

its charge to the jury, and they were inseeking to recover on the ground that the

structed not to consider it as an admission sediment had injured his land, and there

of negligence upon the part of appellant. In fore it was not material that such sediment

the case of Railway y. Dunlap et al. (Tex. would not tend to injure his land, but would

Civ. App) 26 S. W. 655, which was a suit for increase its value. In the case of Austin & damages against the railway company for Northwestern Railroad Company V. Ander- the negligent construction of an embankson, 79 Tex. 434, 435, 15 S. W. 486, 23 Am.

ment which was alleged to have caused St. Rep. 350, the Supreme Court say: "The

plaintiff's land to be overflowed, the court defendant complains because the court re- | say: "The evidence of the cutting by defused a special charge asked to the effect fendant of its embankment during the overthat in case the jury should find the land flow of 1891 was admissible, not for the purand crops were injured by the water passing pose of showing that it thereby admitted through the culverts and sluices, but should | that it was negligent in constructing its road, also find that such water was less injurious but simply to aid in determining the effect to the whole of the land and crops than it which the embankment had in holding the would have been if the roadbed had not water and causing the overflow of the land." been constructed, and it had overflowed ac- | And in Railway Company v. Anderson et al. cording to the natural lay of the land, the 61 S. W. 425, 2 Tex. Ct. Rep. 3, which was verdict should be for defendant,

Such a

also a suit for damages on account of overcharge should not have been given. The act flow of plaintiff's premises caused by obof so constructing the embankment and cul- struction allowed to remain in ditch on apverts was wrongful, and it could not be made pellant's right of way, the court uses this language: "Appellant's first assignment of , to the jury special charge No. 2 asked by aperror predicates error upon the ruling of the pellee, which is as follows: trial court in permitting appellees to prove, “Even if you should believe from the eviover the objections of appellant, that the ap- dence that the overflows alleged in plaintiff's pellant removed the obstruction in said ditch petition would have passed over and on to about the 15th of August, and that after said plaintiff's land and crops if the defendant's obstruction was removed the water ran off embankment and dam had not been there, appellee's premises. We are of the opinion still, if you believe from the evidence that by that the trial court did not err in admitting reason of said dam and embankment, or this testimony. Appellees alleged in their pe- either, or by reason of the culverts or opentition that the overflow of their premises | ings in said embankment being insufficient, was caused by the obstruction of the ditch, if they were insufficient, to permit the water and that as soon as said obstruction was re- naturally flowing there to pass off in its moved the water ran off. The issue in the natural way, and if you believe that by reacase was not whether or not the obstruc- son of such obstructions, if any, the water tion existed, but whether or not it was the was caused to accumulate above defendant's cause of the overflow of appellees' premises. road, and flow across plaintiff's land in greatIt would certainly have been permissible for er volume and with greater speed, and reappellant to have shown on this issue that, main on said land longer than it would have after the obstruction of the ditch had been without such dam and embankment, and removed, water continued to accumulate thereby caused the damage complained of, upon appellees' premises, and thereby dem

or any part thereof, you will find for plaintiff onstrate that said obstruction was not the for such additional damage." cause of the overflow; and we think it was In view of the pleadings and evidence in equally permissible for the appellees to show this case, we are of the opinion that it was that the removal of the obstruction caused proper for the court to give the above charge. the water to recede from their premises. Albers v. Railway Co. (Tex. Civ. App.) 81 We do not think the admission of the testi- S. W. 828. mony contravenes the well-established rule Appellant's assignments of error from 10 that proof of subsequent repairs is not ad- 'to 17, inclusive, each submitted as a proposimissible for the purpose of proving prior tion, are not in compliance with the rules negligence. As above stated, the evidence

of the court, in that there are no statements, was not admitted for the purpose of showing as required by such rules, subjoined to said negligence, but to show that the condition

assignments, and therefore same will not be of the ditch was the cause of the overflow of considered. The only statement given under appellees' premises."

any of these assignments of error is a refAppellant in its eighth assignment of er

erence to the statement under its first as ror complains of the fifth paragraph of the

signment of error, and that statement emgeneral charge of the court, which is as fol

braces practically all of the evidence in the lows:

record; and in order for us to ascertain what “The court further instructs you that if

evidence, if any, there is in the record apyou believe from the evidence that since the

plicable to any of these assignments of ertime of the overflow alleged in plaintiff's pe- ror, it would be necessary for us to read the tition the defendant has cut the dam, if any, entire statement under appellant's first asplaced by it in the channel of Sulphur creek, signment of error, which covers 23 pages of that the act of cutting the same, if it was its brief. We do not think that the rules of cut, must not be construed by you as an ad

this court contemplate that any such labor mission on the part of the defendant that

should be imposed upon this court. Rule 31 said dam, embankment, and culverts caused

for Courts of Civil Appeals (67 S. W. xvi); any or all of the injuries complained of by

King v. Summerville, 80 S. W. 1050, 10 Tex. plaintiff; but if you should find from the evi

Ct. Rep. 478; Galloway v. Floyd, 81 S. W. dence that since the institution of this suit

805, 10 Tex. Ct. Rep. 517. the defendant has removed a portion of said

There being no reversible error pointed dam from the channel of said creek, and that

out in the record, the judgment of the court a portion thereof still remains in said chan

below is affirmed. nel, and that the portion of said dam, if any,

Affirmed. 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."

GULF, C. & S. F. RY. CO. v. WETHERLY. We are of the opinion that the above par- (Court of Civil Appeals of Texas. May 31, agraph is a correct enunciation of the law as

1905.) applied to the pleadings and evidence in the

Appeal from District Court, Lamar Councase. Railway Co. v. Davis (Tex. Civ. App.)

ty; T. D. Montrose, Judge. 29 S. W. 483; Railway Co. v. Dunlap, supra;

Action by J. R. Wetherly against the Gulf, Railway Co. V. Anderson, supra.

Colorado & Santa Fé Railway Company. Appellant's ninth assignment of error complains of the action of the court in giving *Rehearing denied June 28, 1905.

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