*1 CO о damages by which we can measure standard injuries in As
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this case.
such
by
v. Ander
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of Burnett
stated
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App.]
‘The
S.
son
Civ.
cock, Hightower, of and West & of Brownsville, appellee. for SMITH, J. Beck, appellant herein, brought J. R. this against action American & Rio Grande Land LAND RIO GRANDE BECK v. AMERICAN Irrigation Company, appellee, to recover dam- IRRIGATION CO. & ages alleged by to have been sustained him- No. 8609. seepage appellee’s on account of of water from Appeals San Antonio. of Texas. irrigation
Court of Civil pits appel- canals and barrow into adjacent judg- lant’s May lands. Prom an 15, adverse 1931. upon ment rendered a directed Beck verdictT Rehearing 10, Denied June 1931. appealed. has Appellant alleged that he owns a tract of approximately thirty-three acres of farm land adjoining appellee’s canals; irrigation that appellee so constructed and has so main- adjacent pits tained its canals and barrow as seep ap- to cause the water to therefrom' into pellant’s land, thereby decreasing prior pres- its per value of ent to $500 to $750 acre its per acre; appellee’s $100 value of that gross negligence. act in the matter constitute appelleе pleaded In its answer limita years, up of tion certain contract and liabilities of the and contract two and set the terms of a alleged govern rights to the partiеs matter, in the asserting that under the terms of that appellant could not recover. This put evidence, however, contract was not in be inferred from the although may and it parties evidence that the relations of the may part by contract, be in determined that presump is evidence not such as to sustain a tion that such pleaded in contract is fact the one by appellee. upon upon The burden rested appellee prove to the contract relied by appellee’s suit, it as a to defense and hav ing appellee failed to offer it in evidence can urge provisions not its as a defense. Upon appellant put the trial in his upon case, rested, evidence the whole and whereupon appellee, offering any without tes timony, moved for a directed in its verdict favor, granted. presеnted which was Thus is question of whether the sole the court was directing appellee. in warranted a for verdict *2 641 appellee’s objection negligence? detеrmining question was evidence No all the the In evidence, by appellant tak- made re- must he to this no restriction was in his favor offered en any quested upon effect, jury true, raise or its to made and the if it was sufficient and as reasonably appellant, by by pleaded could it not have been misled issues material injury. appellee’s to submit- shоuld have been or issues siich issue ted to examination that jury. from an We have concluded the Appellee that, contends under the contract testimony analysis of thе and pleaded by liability it, its to was restricted jury, gone the should have to the case negligence gross part. acts of on its haveWe directing a ver- erred in the court аnd that put héld it that because was not in evidence dict. appellee was that as a theless of mony not to contract available favorably been, testimony defense, Construing but had it we are never- the opinion appellant, a in of di that as it must he the case the under the testi- to rected closed: might verdict, following jury properly are dis the have found the facts negli- appellant purchased appellee guilty gross the land that When had been of op involved, 1920, gence appellee’s in in was in canal the case. thereof, was on north and eration the side Appellee also contends that the evidence ap- by appellee’s pit; paralleled that harrow appellant’s shows cause of action was barred unnecessary pellee placed in an obstruction by two-year which, limitatiоn, the of statute pit, thereby causing to ac water this barrow cumulate true, applies it is in such cases. But in such escape; thereon, of with no means injury cases complained runs limitation from the time the adja seeped appellant’s this water into that apparent, becomes or of should land, eventually seriously impairing the cent productivity by diligence been have part the discovered due on land; in for this of the that but party by of the affected it. In this case jury of the land would be the value was оr the evidence was such as would have author acre, impaired per in condi $350 whereas its jury appellant ized sue. for the to find is on that inju per $100 value is The tion its but acre. seepage upon land did rious' effect of the not the years apparent until within two justice become case, We that the as conclude of the suit, aрpellee’s of chief institution of this the when law, requires reversal, well as the in order engineer apprised develop was of the appellant’s case, aрpellee’s that the as well as but, although ment, promising stop the to defenses, may fully developed be and the con- by seepage draining pit, the water of the out by jury. trоversial issues determined a any appellee one else he nor These for had done so. Reversed and remanded. outstanding detail, in facts elaborated were great foregoing but the statement Rehearing. for On Motion . gives a sufficient outline of case made. It the opinion original suggested In the it was appellee negligеntly establishes the act of in gross that the raised evidence the issue of flooding pit maintaining its in barrow and it negligence upon part appellee. the of That cоndition, seepage resulting that appellant’s and the into expression necessary decision, not was to the consequent injury land and there improvidently used, was drawn. tion was is and now with- ; raised an to it injury, issue as to the character of here, ques- add We should since the being temporary permanent; as or it original opinion, in the raised that damages by a established showing lawful measure of very carefully analyzed we have the evidence injury that but for said the market upon rehearing, motion for and are сonvinced per $350 value of the land would he or more gross negligence. that it no element of shows acre, whereas, injury, on of said its account truth, upon pleadеd In the evidence no issue only per may is $100 market value true that measure It acre. be satisfactory; very meager up- was it was so showing this method of the true fact, issues, оnly by in on all that it was damages of was somewhat lax and reading every into it intendment warranted up did not set the true measure with that testing in recting action of the trial di- the court in рreferred nicety in some of the decisions. verdict, judg- a that we arrived at the objection But no was offered to the evidence that, We ment of reversal. evidenсe meager, concluded as the upon phase case, introduced this of the and upon part appellant the of sowas we conclude that that evidеnce afforded a by and as no evidence was offered practical measure not inconsistent with the justice appellee, the of the case cоuld be not recognized may measure in such eases. It except upon complete a determined more de- awkward, have been an but it was none the velopment case, of true the facts of the for effective, showing less an method of the dif purpose which the cause was remanded for ference between the market of value the land another trial. immediately immediately before and after injury original opin- apparent. With this modification of effectively the the presented became It ion, appellee’s rehearing question motion case, for 'the real is over- in the to appellant ruled. damaged by wit: How much was