*1 REPORTER 157 SOUTHWESTERN .“Bеcause to be plaintiff pellee The statement on the day pellee, lows: was purchased tended ment for costs.” this though to embrace assignment ary, deed claims ing chargeable ject ment of in ence. ine from her “Because deed prayer Wiest said was not court said claims, deed requested knowledgment ment. The deed to difficult that ment and submitted, signment lot sidered, Hadley [2] The The fifth [5-8] [3] There trust, prove Wiest, deed filed purchased to deed of assignment, valid title thereto.” made filed for record acknowledgment property, Moss not of trust. Us on file when upon holding of trust. The for should erred until “Because We because no have made The sixth for July, 1908, note secured was made pleadings; controversy, he had one of facts. No under which said under order of to tell appellee for to William Swain made a court appellant court erred fourth second constitutes and purchased merely with noticе consider valid, but general of error is overruled. plaintiff pay two after courb trust, proposition been have been record assignment pleadings shows that because appellee, notary public of William Swain execution trust, no deed to said saw it rendering erred into court statement property.” propositions: One that assignment whether assignment she adjudged is contended party or whether merit plea a reference pendes relief, W. thе consideration court erred this Moss Moss purchased property, no suit was filed sale under which is without merit. the 29th held said was taken in at a in pleaded the administrator as no Catherine Wiest H. of tender was made given compelled had ordered it is submitted in the third until after assignment appears not W. proposition. complaint of the deed. plaintiff’s deed of reads as follows: being only for the rendering property deed to notice of bought. could cancеl No conveyed court F. appellee, and sale accompanies the amount due Hadley; reads as follows: H. P. secured to will not rendering judg It .Moss, plea it proposition received reads as that pay subject contention day property to the state take made under was Hadley, H. P. Moss till the under Moss, permitted trust, Catherine rendering was all title. apparent of Janu his He no as deed the he had pay be con that tender, sale of sаtisfy in this tender passed to the for costs. judg- It Moss pres- title. good sold, hav sub con was nor is The suit fol 6th facts ap al as ac- all he a is lows: is abused. 971.*í issues of fact and close. granted defendant shall cause largely the exercise which appeal Error, under Rev. St. trict Court as to notes cept a trial, 1. tions- of Tkial in while under “remarks” it not be sustained. termined. not be considered because too discloses tendered the jury by any judgment entered with sition that did judgment sideration, signment (Court ership by transcript der a Matters 28, 1913.) Witness. ing, April 30, [Ed. Note.—For nio. good defense, person Judgment part, Appeal the statement appellants not Where defendant lot. deed so under App. contrary judgment defendant who has the plea “Because the of Civil April 2, within 44r-75; far as Antonio Alamo Nat. unless BYRD find who was the right plaintiff no error. (§ cannot be held liable for costs un- amount of land included is was defendant is sufficient Moss oe Discretion — seventh for matters which shоuld In the absence rendered immaterial Rule 31 but an examination plaintiff of tender never made until after irrigation project not briefed so as to affirmed. any trust money respect are settled and before the discretion of the court pleadings, herein.” This facts of the answer which to the as set forth admit that rendered. may Appeals IRR. CO. v. SMYTH. 1913. On Motion for Rehear concerning should open may evidence in is -Right in a Error parties, surveyed was S. W. not assignment Plaintiff in her due arts. should found it was a may to the judgment admitted and close law and the proceeding Rehearing given shown ownership note, found permissible. of Texas. have right on the § 25.*] defeated, qualify 1297-1299, and Dis- of evidence A owner of Qualification Open pay note. established is asserted that reference to the the statement of assignment be disturbed on except been court to have Bank, general. City all the note, provided belongs xx), providing open condemnаtion, reads as fol all right shows a witness to on the whole require Denied petition, if, constituting —Review- can be trial subsequent may San Anto costs can- pleadings a lien rendered whole or lien, condemn This as- properly appear Close. land is propo- record allega- no in- at the note; court trial, have own- issue good close Tex. May field con- will but de- ex- and section NUMBER in Series *For other 'cases see same &Am.
Tex.)
IRR. CO. v. SMYTH
BYRD
-tion
3.
4.
opinion
enable
miliаrity
ity
Cent.
ain
pertinent
court
5.
it
platted it,
cross-examination
land
most of
civil
land
ages
himself
ue
ue
Cent.
nature
was erroneous as
in
ed,
such
several
main,
ant the difference in the
land,
dence
Error,
ular
fendant’s
Cent.
struction
ages,
882.*]
gation
permitted
damage,
to the
found the
tion
demnation.
son of
properly stricken.
tendering
proposed
to add
rigation project,
main,
lege Error.
Qualification.
ion —
Land —
Damages.
[Ed.
[Ed.
[Ed. Note —For other
[Ed.
[Ed. Note.—For other
authorizing
Evidence
Evidence
a number
Eminent
Appeal
Evidence
Eminent Domain
cutting
condemned is
as a
of the land.
he
and
market value of
value
A
aWhen witness
Appellant
In a
aWhere witness
In a
of a certain kind
of an
value.
shapes,
engineer,
general
if
ain
by his
Dig.
Dig.
Dig.
value of
him to arrive at
witness
Note.—For other
in the same
such
market
Cent.
Note.—For
Note.—For other
Qualification
any,
question
any,
if
sales of land
fact.
uses, prices
introduced the
some
with the
reservoir on stated
that the
proceeding
use of
Qualification.
improvement
him
defendant the
proceeding
such lands off
facts which
he
prima
he
and
any,
condemnation
§§
and Error
expert,
§§
§§
Dig. additional
before and
Domain
own witnesses.
way
(§
(§ 474*)
2196-2219;
possesses
2196-2219;
(§ 474*)
cannot
2196-2219;
had
value before
lands situated outside the
knew
competent
times,
for seven
land
a document filed
not
facie
§
to the value
land,
inconvenience,
jury
remaining
permitting
jury
described
was not a
land taken for
and is
562-567 lived
section
other
to be condemned
land
of other
several
tracts,
to condemn land for an ir-
—Value
has stated that he
usually
its
—'Witnesses—'Value
to condemn
(§ 222*)
complain
of evidence to
his
qualified
should
to believe that
an
knew
in the
testified that
damage
would
—
(§ 882*) Right
of Witness.
same character
after
may satisfy
use of
190*) Pleading.
cases,
question,
sought
market
in the
knowledge
proceeding,
opinion
Value
cases,
cases, see
сases, see
intelligent
qualified
Dec.
years,
Dec.
;
Dec.
and after the con-
conditions,
miles
the
its
within
a double
—Land
land of
testify
do
consider the
pleading
he
country, or other
water
of Land —
see Eminent
see Eminent Do
vicinity,
to the difference
—
himself to
find
of the
find in addition
water
Dig.
Dig.
to be
vicinity
so,
character,
quality
land
if
—
had
see
had been
value,
Dig.
knowledge
up
as to the
taking,
value of the
land,
distant, and
Witness
any,
190.*]
if the
show dam-
the defini-
opinion
into
petitioner,
he was
§
§
where
known
a similar
Evidence,
sought
Evidence,
Evidence,
condemn-
reservoir,
Taken—
introduc-
from the
§
properly
its
give
and was
recovery
474.*]
474.*]
the val-
§
in miti-
and
defend- acres,
of evi-
to Al
though
Dig.
reason
of the
on
knows
474.*]
in de-
Opin
222.*]
limits
irreg-
qual-
sta'te
dam-
were
trial
jury
over
rea-
val-
had
Do
his
fa-
in-
on
—
to
of Error,
§
demned,
versal,
1051.*]
made
mate, though
jection,
Dig.
property sought
al of a
it
10.
land
by
tiff
to was
9.
465.38.
against
awarding
vised
certain land
all of San
land which
permitted
Jno. W.
Martin &
and canаls to
ed
verdict
commission,
ty belonging
taken
ments of error
charter under
there tried before a
remittitur
court,
tion of
9,918.59
adducing
to the
ute,
who
ease under the
of Evidence —
from Consideration.
[Ed.
[Ed. Note.—For other
Appeal
Action
Mangum
TALIAFERRO,
Trial
condemn a
a
Appeal
law, to fix the
appeals.
purpose
Byrd Irrigation Company,
damages. Report
T. M.
§
surveyor
has the
by
Statutes. A commission
Note.—For
request
Cent.
not such
n
where the
to the
trial of
and a
condemnation
should
but which the witness admitted
fixing
jury.
the reservoir tract
wrongful
damage
acres,
J. G.
the,
actual
that the
Hill,
from District
208*)
(§ briefly
by
On Motion for
West,
damages
Martin
Antonio,
county
powers
&
cumulative.
and Error
and from that
Dec.
Dig.
admitted
for an
Townsend
$2,000
Affirmed
to
have
the amount
county
tract
chapter
all of
constructing dams, reservoirs,
or a total of
an
Prejudice.
Smyth.
survey
pleadings.
estimate
complain
to the balance of
stated, belongs
used for
jury
J. G.
Dig.
portion
admission
cause is
—Exclusion
§§
be condemned
and L.
Byrd Irrigation Company
amount of
J.
first and second
error as would
result
conferred
and Love Williams
for the
right
irrigation project, plain-
of land
4161-4170;
proceedings, a
jury
should
in evidence without ob-
Uvalde,
court.
This
jury,
§
on
and was
Court,
cases,
and in
cases,
(§ Antonio,
land at
excluded
Smyth, appellee,
208.*]
Rehearing.
entered
of the
From
title
from the
irrigation purposes
Old,
entered for
rehearing.
of land
because the court
should
open
regulated by
report appeal
duly
of a
sought
condemnation of
$2
R.
Mason
accordance with
who
amount of
&
open
see
Uvalde
$141,465.38.
see
‘60,
all of
and
of Evidence
Uvalde
rough map
per
$20
map
only
made
and close
consider
—Exclusion
on
corporation,
Dec.
not
justify
Appeal
rendered a
to be
the whole
map
appellant.
Williams,
appellee’s
argument
was
case was
the lower
per acre,
construс-
a
appellee.
acre on
appoint-
County.
consider
was
objected
6,081.41
Uvalde,
the Re-
an esti-
request
Dig.
assess
refus-
rough
$139,-
coun-
Cent.
made
close
arts.
stat
it.
con-
and
re-
A
§
otter cases
*For
section NUMBER in
Deo.
&Am.
Series
157 SOUTHWESTERN REPORTES
nesses
matters
441;
try,
isfy
phone Telegraph
ception
1040;
& G.
way
testify
similar
ity
he
arrive
of the land
iarity with
tify
tion.
Tex.
cerning
nor
tion of an
Civ.
clusion
turbed
clearly shown that he
31. But if
749,
plains
amount of land included
of the land
and
ther
ruled.
W. M.
to
contended thаt
to have
tion
the discretion of
Houghton,
case,
of the land.
er the admission
this
that
fact are settled and before the trial com-
cause of
except
tablished on
fendant,
mences,
or in
stituting
1297-1299.
is based District Court Rule 31
have the
be more than
burden
xx),
[2]
does he
or other
impossibility,
necessity,
the trial
Cas. Ct.
Railway
party. Assignments
only
of a
2 L. R.
N.
Co. v.
Railway
What is
Such a
321,
came
taken for the
G.,
part,
at an
to the value of the land as a fact.
of
specially
so far as it
Jourdan,
upon
by
nature
of
Ry.
about which
admit that
uses,
qualified
action as set
a
parties agreed
right
C. &
conclude,
the admission of the
rendered immaterial
possess
witness
the
expert,
14 S.
68 S. W.
unless
good
value of land
provides
Upon
fully
surveyed
Hepner,
usually,
it was
their
intelligent opinion
App.
pertinent
such matter will not be dis
third
reference to
v.
court
one, “shall,
witness does
v.
A.
question,
whole ease
land, knowledge
the facts of the answer con-
appellate
S. F.
of
rule that
v.
Ruby,
trial.”
upon
Fagan,
the trial
skilled as
defense,
contained
75,
tile
within the terms
all the
W.
price
may
Klaus,
Co.
filed
that he is
the
witness was not shown
deficient,
such as
testify
come within the defini
83 Tex.
Ry.
718;
they
13
articles
has
give
703;
times,
80 Tex.
facts
forth in
v.
It
72 Tex.
defendants,
Am.
upon
court unless it
show
condemnation,
64 Tex.
Co. v.
permits
court,
after
rests
1
which
abused his
defeated,
in the
is
is
value of the land
Forke, Willson, what is
are
17
knowledge
Railway
section of coun
close
experts in
doubtful
placеd
very largely
enables
based this ex
140,
Cyc.
evidence,
plaintiff!
St.
the motion to 41 N.
172,
called
of error com- tion he
competent
this
because it is
issue
*3
upon
the
opinion
the
130,
Norfleet,
evidence
the statutes
necessarily,
2
may
has
of its
2
presenting ing epunsel
field notes
294;
unless the
Rep.
the value
deficiency
18 S. W.
W.
9 W.
are over-
31;
qualifica
may
15 S.
issues of
the fact
question years;
petition,
upon
its con he did in a
of
the
him to 39
a
in this 4 N.
wheth-
discre
Co.
of
famil
be es-
whole
S.
value
Rail
qual
Tele
shall
good
con
wit
rule
sat
tes
and that he was
de- v.
ei- of times
78
v.
I. value
pellant
knew the market
their
that
erty
fied himself to
should,
plete
ger
value,
ject
ruled.
condemned was of a
the trial
such
er courts.
Mass.
assignments
13, 14, 15,
question also within
a
the land in
have been
lived in
knew
other tracts.
value of
that
vicinity,
Some
long
of the
other
evidence it will be
distant.
N.
W.
dan.
discretion in
to
sessed
contemplated
ment
331;
and cases cited. The
experience
merely stating
The third
[4] In
comparison
John,
N. E.
the
E.
764.
knowledge possessed by
qualification
to the admission
he knew
he had
discretion
he had
Snodgrass
been a
examination
of
opinion.
E.
326,
E.
tracts,
its market
Upon
790;
6,081.41
but most
by
that he had
examined him
knows the market value of the
question,
to the mind
was based.
too remote to form a
and knew
this
the
9
these
127;
He
most of which was several miles
488; Railway
lands,
conveyed
them a
requested,
276;
19
sold,
Tex.
Amory
16,
toas
Lyman
general way
has
question
facts.
did
Nos.
direct examination he testified
information
a
admitting
surveyor
N. E.
vicinity
platted
a
is such an
Railway
as to the kind and
test the source and
acres and also of some of the
witnesses
17,
property
state
knowledge
must
When witness
Phillips Marblehead,
what
nor
Civ.
civil
v.
not, by express terms,
of.
the facts
been said also
several sales of land in the
and a liberal
enable
he has
4, 5,
value.
the court did not abuse its
he was not a
v.
to them a mere state
Chicago,
seen
v.
them
Coоper
more
does
measure of
permit
App. 342,
be allowed
the sound discretion
give
Melrose,
better
G.,
such witness
with the lands said to
engineer;
knowledge
of the
Boston,
upon
character
v.
of lands. He stated
7,6,
20,
v.
v.
describe the
the
sufficiently
showed but a mea
examination of his
& C. S. F.
to be condemned.
Blake,
testified
understanding
prima
not
exact
land;
On
value. The
over it a
Harmoson,
evidence
all of which ob
v.
quality
by
8, 9, 10, 11, 12,
appear
152 Ill.
witness
thereupon
the land to bе
lands and had
162 Mass.
cross-examina
naturally pos
opinion
State,
full and com
164 Mass.
29 S.
criterion is a
manner than
that he had
and that he
latitude for
comparative
facie
116
farmer,
that is thus
disposes
point.
witness, by
which the
.as
quality
accuracy
than the
of
near or
Ill.
W.
Ry.
23 Tex.
number
600,
quality
oppos
quali
as
22 S.
prop
seven
make
high
Jour
over-
land;
gave
jury,
they
556,
give
163,
But
558,
148
99,
38
y.
Tex.)
CO. SMYTH
263
;BYRD IRR.
.first
is a
ted
the evidence
of such
is the
45 Minn.
dence.
upon.
portion
posed
mission of evidence as tо the’
v.
inis
129 W.
130,
Rep.
assignments
only by
Railway Co.,
Railway
upon
measure
pellee’s
witnesses,
Evans,
S.
of
the
both
effect.
of the court because
condemned,
ror the
if
appellant
self and then
makes like
given by
land,
taking,
lands
lands
in the Dawson taken for the
such to
outside of the limits of the land
er the
will find for the
difference
that
determine therefrom the
facts which
covery,
find in addition to the value of the land
urged.
There is no merit in
[6]
any,
W.
Schuttler,
exception,
condemned,
testimоny,
App. 452,
theory
9 S.
assignment
question
charge
776;
parties
evidence
By
if
wrong
off from
reservoir,
237;
court, only,
up
damages,
M.
134 Ind.
grounds
of
When
land not included within the
in
knowledge
subject
Its reason for
any,
The measure
position
appellant complains
reason of
W.
may,
M.,
the court to the
cannot make
appellee’s
qualification
in
introduced evidence to the same
defendant’s use
P.
proof.
theory.
C.,
as follows: “You will also consid
of the measure of
damages
are that it-
twenty-second
measure of
of error
before
it
(Mo.)
are in issue. The
78 Wis.
wherein the court states that
79 S.
irregular
of law
& K. T.
R.
reservoir.”
and that it instructs the
48 N. W.
water,
R. I. &
to the first
the trial was the
for the
case,
unduly emphasizes parts
if
S. W.
upon
complain
Cluck
defendant,
one
eighteenth
R. Co. v.
market value of the said
evidence has been
before
any,
error,
33 S. W.
damage,
L.
Be that as it
appellant’s objection
reason of
presented
it, by
land
complain
Turkey
admitting
state
33
to that
for this court
quality
if
the
Ry.
complain
80; Railway
R. A.
989;
of its
v.
doing
G.
permits
taking
jury;
damages.
shapes,
N. E.
you
appellant’s
outside
admitting
existence
several of its own
Railway,
ground
of facts is