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13. The court did not err in giving, at the request of the Missouri, Kansas & Texas Railway Company, special charge No. 1, which is as follows: "There being no evidence of delay of the cattle in controversy on the line of the railroad of the Missouri, Kansas & Texas Railway Company of Texas, and no allegations in the pleadings of a delay on the said railroad, and there being no claim that the Missouri, Kansas & Texas Railway Company of Texas had collected and received for its own use and benefit a greater amount of freight charges than that allowed by law, you are instructed to return a verdict for the Missouri, Kansas & Texas Railway Company of Texas;" for the undisputed evidence warranted the court in so charging the jury.

14. The court did not err in permitting the witness Drahn to testify from his knowledge as to what the freight rates from Abilene to Ft. Worth were, for as to this freight rate he testified that he knew it because he had paid it a number of times.

15. It does not appear in the statements under appellant's thirty-fifth and thirty-seventh assignments of error what objections were urged to the testimony of plaintiff P. J. Miller, which is made the subject of these assignments. Therefore they will not be considered.

16. The receipts from the Missouri, Kansas & Texas Railway Company to the Ft. Worth Live Stock Commission Company, plaintiffs' consignee, showing the amount of freight paid for the shipment of cattle, were properly admitted in evidence as showing the freight charges.

There is no error assigned which requires a reversal of the judgment, and it is therefore affirmed.

CITY OF EL PASO v. COFFIN.* (Court of Civil Appeals of Texas, June 7, 1905. On Rehearing June 28, 1905.)

1. EMINENT DOMAIN PROCEEDINGS DAMAGES-INSTRUCTIONS-REPETITION.

In a suit to condemn land for a park opposite a union depot, the fact that the court had already charged with reference to the same matter did not render an instruction that Const. art. 1, § 17, provided that no person's property should be taken for or applied to a public use without adequate compensation being made, unless by consent of such person, and that defendant was entitled to recover full compensation, which is the market value of the property as defined to the jury in general charge, and requiring the jury to consider such instruction in conjunction with the general charge on market value, erroneous, as calculated to unduly impress the jury with the fact that defendant was to receive the full market value of the property. 2. SAME.

Where, in condemnation proceedings, the jury were specially charged that defendant was entitled to recover the market value of the property on a specified date under the instructions as to market value given in the general charge, which was to the same effect, an objection that a certain paragraph of the main charge was silent as to the time when the value was to be estimated, and was therefore calculated to make

*Application for writ of error dismissed by Supreme Court for want of jurisdiction.

the time of the trial the basis of such estimation, was unsustainable.

3. SAME-MARKET VALUE-SURROUNDING CIRCUMSTANCES-FUTURE DEVELOPMENT.

In a condemnation proceeding, an instruction authorizing the jury in arriving at the market value of the property on the date the proceedings were instituted, to consider conditions surrounding the property at that time, its location with reference to business, the demand for property at that time, including any increase or development thereof that might then have been reasonably expected in the immediate future, was correct.

4. SAME-USE OF OTHER LAND-CONSIDERA

TION.

Where, at the time all of defendant's land in the vicinity was taken by a city for a park, certain railroads had acquired other property near by and commenced the construction of a union station thereon, and the proceedings by the railroads to acquire such land were separate from the proceedings by the city to acquire the land in question, the jury was entitled to consider the construction of such depot in arriving at the value of defendant's land.

On Rehearing.

5. COURTS-JURISDICTION.

Const. art. 5, § 16, providing that the county court shall not have jurisdiction of suits for the recovery of land, refers to suits for the trial of title to land, jurisdiction of which is vested in the district courts by article 5, § 8, and hence section 16 does not deprive county courts of jurisdiction of condemnation proceedings.

Appeal from El Paso County Court; Jos. U. Sweeney, Judge.

Condemnation proceedings by the city of El Paso against C. O. Coffin. From a verdict awarding defendant $19,937.51 for land taken, plaintiff appeals. Affirmed.

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JAMES, C. J. On November 15, 1902, the city council of the city of El Paso enacted an ordinance which recited that the railway companies operating or building railroads into the city have agreed on plans for a union passenger depot, and that it was necessary that certain streets and parts of streets and certain alleys should be closed by the city and others opened for the public use, and which ordained that certain streets, etc., be abandoned, etc., and granting the railway companies the right to close and use the same for railway purposes after certain abutting property shall have been acquired by said companies within the limits named, etc. Also, among other things, the city agreed and bound itself to acquire by condemnation or otherwise the north one-half of the west one-half of block 171, according to the map of Campbell's Addition to the city of El Paso, "provided the said Union Depot Company agrees and does keep and maintain the same as a public park for the use and benefit of the people of El Paso." Also, that "the company hereafter to be organized for the purpose of maintaining the said proposed new union passenger depot and each railroad now operating in the city of El Paso

shall have 90 days from and after the passage and approval of this ordinance within which to file with the city council their acceptance of the terms and conditions of this ordinance." Acceptance was shown to have been duly filed. On December 3, 1903, the council adopted a resolution reciting that by the ordinance of November 15, 1902, the city agreed to open a certain new street, and also to acquire, by condemnation or otherwise, the north half of the west half of block 171 of Campbell's Addition, being lots 12 to 17, inclusive, "provided the Union Depot Company maintains the same as a public park; and whereas, in order to open up said street and park, it is necessary to take certain tracts of land for which the city desires to make just compensation: Therefore, resolved that the city attorney be and is authorized to make certain offers to the owners for the property, and, in the event that the owners refuse to accept said offer, that he be, and is hereby, directed to institute proceedings against the owners so refusing to condemn said land," as set forth in section 148 of the charter. On August 4, 1904, an ordinance was enacted reciting that offers had been made to the owner of said six lots for same, which had been rejected, and "the amount of compensation for same cannot be agreed upon; and whereas, proceeding for condemnation of same has been filed by the city attorney before the county judge in cause No. 2,274, styled "The City of El Paso against C. O. Coffin': Now, therefore, such action by the city attorney is hereby ratified, and he is hereby authorized to prosecute such matter." On September 12, 1904, a resolution was passed providing that in the above proceeding the mayor be authorized to pay to Coffin the amount of compensation awarded against the city by the commissioners in said cause, or deposit the money in said court subject to the order of defendant, and also the costs, and, in addition thereto, to deposit a further sum equal to the amount of the compensation awarded by said commission, and authorizing the mayor to execute a proper bond conditioned for the payment of any further costs which may be adjudged against the city either in said court or on appeal, and to take any further legal action for and on behalf of the city that he may deem proper, and that the city take immediate possession of the land sought to be condemned upon the payment or deposit of the money, and that a proper warrant be drawn for such sums. The award of the commissions was $3,747.66, and the proper deposit was made by the city on October 6, 1904. The defendant appealed, and on the appeal a jury awarded him $19,937.51, and from the judgment of the county court the present appeal is prosecuted.

In addition to the facts involved in the foregoing statement, is the fact, which we think is of some importance, that prior to October 6, 1904, the date of the deposit, the

lands for the site of the Union Depot had by purchase been acquired by the railway companies or the Union Depot Company. This was undisputed, and it also appeared from uncontradicted testimony that early in October, or at least a few days after October 6, 1904, work was begun by contractors grading the depot grounds. The testimony of Mr. Patton, who was connected with the Union Passenger Depot as engineer and superintendent of construction, was that he went to look over the ground, and decided where he would locate the building, and scaled the building according to the architect's plans. He did not know the exact time when the grading began upon the property. It began some time in the early part of October, but he could not give the exact date. During the month of October he cross-sectioned the ground in front of the building. The work of grading was begun by the contractor the next day after he did the cross-sectioning in front of the depot, and Mr. Powers was doing the grading. Mr. Look, a witness, testified that he could not give the exact time they began grading and began the work of constructing the depot, but it was soon after the 6th day of October, 1904. We state the above as showing what the testimony showed the conditions to be on October 6, 1904, and that it appeared that the railways at that time had acquired title to their grounds, had plans for their depot building, had made contract for grading their grounds, and that the work of construction was in the act of beginning. The tract of land comprising the six lots sought to be condemned was separated from the depot grounds by a street. The taking in this case was of all the land defendant had in the locality.

Opinion.

The motion filed by appellee to dismiss the appeal for want of an appeal bond is overruled by force of the charter provision.

We are unable to see, considering the real issue in the case, anything calculated to affect the result in what is assigned as error by assignments Nos. 11, 12, 25, and 27. The correctness of the judgment depends upon the correctness of the court's charge in reference to what the jury might consider in arriving at the market value of defendant's property on October 6, 1904, the date of the taking. Assignments are so framed as to question not only the charge in this respect, but the admission of testimony in conformity with the idea embodied in the charge, and these assignments, therefore, present and depend upon the same question.

The charge was as follows: "As to the law applicable to this case, you are instructed that: The measure of damages to which defendant is entitled * is the full mar

ket value of lots 12 to 17, inclusive, in block 171, and you will return a verdict for the defendant in the amount so found by you, and return a verdict for the plaintiff for the

land in controversy. In estimating the value of property taken for public use, it is the market value of the property which is to be considered. You are instructed that the market value of property is a price which it will bring when it is offered for sale by one who desires but is not obliged to sell it, and is bought by one who is under no necessity of having it, and in this estimate you will not consider that this proceeding is pending to take said property by condemnation. In determining the value of property, all of the uses to which it may be applied, and for which it was adapted on October 6, 1904, are to be considered, and not merely the condition that it is in at the time, and the use to which it is then applied by the owner. You are further instructed that the damages cannot be measured by the value of the property to the party condemning it, nor by its need of this particular property. You are further instructed that in ascertaining the market value of said property on the 6th day of October, 1904, you should consider the condition of the property at that time, its locality with respect to business and demand for property at that time, and any increase or development thereof that might have been reasonably expected in the immediate future at that time. In ascertaining what the market value of the property involved in this controversy was on the 6th day of October, 1904, you should consider the conditions then existing at said time, but you would not be authorized to consider speculative or merely possible contingencies, and you would not be authorized to consider any evidence as to speculative values."

The court also gave a special instruction, requested by defendant, which stated that under the statutes of this state, when the whole of a person's real estate is condemned as in this proceeding, the damages to which he is entitled is the market value thereof in the market in which the same is located, and, further, "that the Constitution of the state of Texas (article 1, § 17) provides that no person's property shall be taken for or applied to a public use without adequate compensation being made, unless by consent of such person, and that defendant is entitled in this proceeding to recover full compensation, which is the market value of said property as the said term is defined to you in the general charge of the court; and this instruction in reference to the value of the property you will take and consider in conjunction with the general charge of the court upon market value."

In reference to the last-named special charge, it is assigned as error that the reference to the constitutional article was erroneous, because the court had already instructed the jury in reference to the same matter, and the reference to the Constitution on the subject was calculated to unduly impress the jury with the fact that defendant was to receive the full market value of the prop

erty, by repetition of the injunction contained in the general charge. This, we think, cannot be regarded as error. A court may commit error to the prejudice of a party when it, by its charge, gives undue prominence to a fact or to an issue. But we have yet to learn that a rule or principle of law which a jury is bound to observe can be too well impressed upon them.

The first assignment is without merit. The charge of the court must be read or construed as a whole, and the jury were expressly told in a special instruction that defendant was entitled to recover the market value of the property on the 6th day of October, 1904, under the instructions as to market value given in the general charge. The main charge was the same in effect. Hence the complaint that certain paragraphs in the main charge did not state the time when the value was to be estimated, being silent thereon, was calculated to make the time of the trial the basis for estimating the damages, is not well founded.

There are many assignments complaining of the main charge, based upon the idea that it permitted or authorized the jury to consider any increase or development of the property by the construction of the Union Depot, or, as otherwise expressed, was calculated to induce the jury to believe that they could fix a valuation upon the property contingent upon the construction of such depot upon it, and that said property might be used for storehouses after the completion of the depot, and also expressed thus: Because it authorized them to consider values attaching to said property by reason of the building of the Union Depot upon it. The depot, however, was not to be built upon this property. The force of appellant's proposition lies in the charge authorizing the jury to take into consideration the construction of the depot in the immediate vicinity of this property as an element entering into the market value of this property on October 6, 1904.

It must be admitted, from a fair reading of the charge as above copied, that it does nothing more than instruct the jury, in arriving at the market value on October 6, 1904, to consider the conditions surrounding the property at that time, the charge specifying its locality with reference to business and demand for property at that time existing, including any increase or development thereof that might then have been reasonably expected in the immediate future. This is the correct rule, as held by this court in Sullivan v. Ry. Co., 68 S. W. 745; Allen v. Ry. Co., 25 S. W. 826.

We see no reason why, under the proven facts and circumstances of this case, the jury were not warranted in concluding that the completion and use of this depot adjoining the property in question were on October 6, 1904, assured facts to occur in the immediate future, and based on conditions then in

progress pointing directly to such completion and use, in such manner as to directly have effect upon the market value of the property in question at that time. To have excluded such consideration, and to have confined the jury to the condition the property was in at the time, and the use to which it was then applied by the owner, independent of its value as then affected by such consideration, would have been error.

We think there was no error in the charges on the measure of damages as ordinarily controls in this class of cases. But a question arises, which is strongly and ably urged by appellant's counsel, and which grows out of the circumstance as counsel put it, that the land of appellee was a part of the land designated to be taken and condemned in carrying out the project of a union depot in the city of El Paso, and to give safe and convenient ingress thereto and egress therefrom, the parts to be done by the city and by the railway companies and Union Depot Company, respectively, being correlative and interdependent, as evidenced from the ordinance. We understand the contention to be, in effect, that the condemnation in question should be viewed as if this property, and the ground acquired by the railways for the depot, were being simultaneously, or by one proceeding, condemned for depot purposes. Either this, or that the taking of appellant's lots was a part and parcel of the original plan of improvement, as from the ordinance it will be seen that the building of the depot and the opening of the street and the park were dependent and conditioned one upon the other, and the ordinance and the acceptance of same constituted an agreement binding on all. It is held generally, in cases presenting the appropriate facts, that, where a person's entire property is included in one general proceeding of condemnation for a particular purpose, it is not permissible to consider that purpose, or the results thereof, in estimating the owner's compensation. The reasons for this rule are apparent. To permit it would be to take into consideration the condemnation proceeding itself as a factor, which is not allowed. Further, it is evident in such a case that the taking, and the effect on the value from such taking, would be concurrent, and such increase would not exist when the taking occurs. The person's property is taken and is absorbed in the purpose for which it is taken, and to allow him a compensation based on the value which the property would have had if not taken would be giving it a status it could not possibly have had in the very nature of the act. The reasoning of the Supreme Judicial Court of Massachusetts is appropriate here (though not its decision, as that was controlled by a statute): "Its real value for use is not increased until the change in its surroundings comes. If the expected improvement involves the taking of the land by the right of eminent domain, the value of the land taken will

never be enhanced by the improvement, for the taking precludes the probability of ever using it under improved conditions." May v. City of Boston, 32 N. E. 902. Such, we think, would be the case here if this property and the other property acquired as a depot site were being condemned by the railway companies simultaneously in a common proceeding. But the property is not being condemned by the railway companies, nor is it being condemned for its purposes. Furthermore, at the time at which the law requires this property to be valued, the companies had already acquired the property to be used for their purposes. The case of the city could have no better footing than would have been the case had the railway companies, after acquiring the grounds for the erection of their depot, proceeded to condemn this property as additional grounds. The case of Ry. v. Brugger (Tex. Civ. App.) 59 S. W. 556, is, we think, an authority on this state of case. If not directly in point, the decision is not consistent with any other theory than that the steps already taken by the railway companies towards establishing their depot on the adjoining site, in so far as they indicated with reasonable probability such establishment in the immediate future, should have been considered in fixing the value of the plaintiff's property on the date of its taking. And such is the necessary result of the rule stated in Sullivan v. Ry. Co. (Tex. Civ. App.) 68 S. W. 745. See, also, In re Condemnation of Certain Land (R. I.) 33 Atl. 523.

It is true the original ordinance, the provisions of which were accepted by the railway companies, contemplated, and, we shall say, stipulated for, the acquisition of defendant's land by the city for a public park, and, when acquired, that it should be kept in order by the said companies or the Union Depot Company. This, we think, is not a factor in respect to the rights of defendant. His constitutional right in this involuntary proceeding, as further defined by our decisions, was to be awarded the value of this land at the time it was taken, and this time is not to be referred back to a previous time, when the taking was first contemplated or decided upon by the city.

The assignments of error do not establish error, and the judgment is affirmed.

On Rehearing.

The appellant contends that the county court can have no jurisdiction of condemnation cases, by reason of section 16, art. 5, of the state Constitution, which provides that said court shall not have jurisdiction of suits for the recovery of land. Section 8, art. 5, vests the jurisdiction of all suits for the trial of title to land in the district courts, and we think the reference to suits for the recovery of land in section 16 meant suits for the trial of title to land. The question was before the Court of Appeals, and it

held that the statute giving the county court jurisdiction over condemnation cases was not unconstitutional, for reasons expressed in the opinion found in Gulf, C. & S. F. Ry. Co. v. Tacquard, 3 Willson, Civ. Cas. Ct. App. § 141. The question does not appear to have been directly raised and decided in the Supreme Court, but that court has made rulings which are entirely inconsistent with the correctness of the position assumed by appellant. See Ry. v. Poindexter, 70 Tex. 98, 7 S. W. 316; Ackerman v. Huff, 71 Tex. 317, 9 S. W. 236; Galv. Wharf Co. v. Ry. Co., 72 Tex. 454, 10 S. W. 537. The question being a constitutional one and plainly fundamental, it could not have been overlooked in the above and other cases which involved it. We cannot consent to certify to the Supreme Court a question thus practically settled, and one with regard to which no member of this court entertains any doubt.

The other questions referred to in the motion for rehearing are, we believe, correctly disposed of by the opinion filed. The motion is overruled.

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HARKEY.*

(Court of Civil Appeals of Texas. May 24, 1905.)

1. CONTINUANCE-AFFIDAVIT-VERIFICATION. The verification to an affidavit for continuance by the attorney of the party, stating that the matters set forth therein are true, to the best of his knowledge, information, and belief, is insufficient.

2. DAMAGES-EXCESSIVENESS-PERSONAL IN

JURIES.

In an action for injuries, the evidence showed that plaintiff was 32 years of age; that prior to receiving the injuries he was a stout, ablebodied man, earning from $1,000 to $1,500 a year, and that since he received the injuries he had not been able to earn half so much. He testified that he received a violent fall, which mashed in his side and bruised his back and right leg; that he was confined to his room and unable to work for five or six weeks; that his wounds prevented him from sleeping at night. A physician testified that he found plaintiff's right side sunken and shorter than the other, the muscles atrophied, and that when standing erect his right shoulder was lower than the left; that the two lower ribs on that side were driven in and down, and there was a tender spot over his spine and also over the two ribs; that from plaintiff's statement as to the pain he suffered there must be an adhesion on the inside or something torn loose; that complications might arise which would necessitate an operation; and that the injuries were permanent. Held, that a judgment for plaintiff for $2,000 was not excessive.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Damages, §§ 372, 375, 378.] 3. DEPOSITION-MOTION TO QUASH-TIME FOR

MAKING.

Under Sayles' Rev. Civ. St. 1897, art. 2289, providing that objections to depositions shall be made and determined at the first term of court after the deposition has been filed, and not thereafter, a motion to quash a deposition, when made after announcement of ready for trial is too late.

*Rehearing denied June 28, 1905, and writ of error denied by Supreme Court.

4. SAME QUESTION OF FACT.

A motion to quash a deposition on the ground that it was not returned as required by law, in that the envelope on which it was returned showed neither the postmark, place from which it was sent, nor that it was sent by the postmaster, raises a question of fact for the determination of the court, on which it was authorized to receive testimony outside of what was shown by the deposition itself or the indorsement on the envelope.

5. CARRIERS-NEGLIGENCE-PRESUMPTION.

The derailment of a passenger train at a time when the track and train are under the control of the carrier raises a presumption of negligence on the part of the carrier.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1288.]

6. SAME-INJURIES TO PASSENGER-Burden OF PROOF.

Where a passenger train is derailed at a time when the track and train are under the control of the carrier, it is incumbent on the carrier, in an action against it for an injury to a passenger resulting from the wreck, to show that the accident could not have been avoided by the exercise of the utmost care and foresight reasonably compatible with the prosecution of its business.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 1288.]

Appeal from District Court, Cass County; A. P. Turner, Judge.

Action by Joe Harkey against the St. Louis Southwestern Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Glass, Estes & King, for appellant. O'Neal & Allday, for appellee.

EIDSON, J. This suit was brought in the court below by appellee for $2,000 alleged damages for personal injuries alleged to have been received by appellee while a passenger on one of appellant's trains during the month of October, A. D. 1902. The allegations of the petition are substantially as follows: That the car on which appellee was riding was derailed near Winfield, Tex., through the negligence of appellant and its agents; that at the time of such derailment appellee was thrown from his seat with great violence into the aisle of the coach in which he was riding, and thereby greatly injured. He alleged that his right leg, his back, and his right side were greatly bruised, lacerated, and mashed, and that he was also injured internally; that by reason of said injuries he was confined to his bed the greater part of two months, during all of which time he suffered great physical pain and mental anguish; that his said injuries are permanent, and that he still suffers intense pain from said injuries; that since said injuries he cannot sleep on his right side, and can scarcely lift anything of much weight; that before said injuries he was a stout, ablebodied man; that he is a farmer and stockman, and was earning from $100 to $150 per month, and that since his injuries he cannot earn more than one-third of said amount; that by reason of said injuries he was compelled to pay out $50 for medicine and medi

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