59 Tex. 128 | Tex. | 1883
■ This action was brought by Jerusha Donahoo, joined by her husband, to recover damages for injury to land, her separate property, by the construction of the defendant’s railway thereon; she alleging not only the unauthorized use of her land' for the railway, but also that the railway was so constructed as to cause her land to be overflowed and thereby rendered less valuable for agricultural and other purposes.
The conveyance from the husband to the railway differs in no material respect from that which was considered by this court at the last Austin term, in the case of The Texas & Pacific Railway Co. v. Mary A. Durrett et al., 57 Tex., 48.
In that case it was held that the husband had no power to convey a perpetual easement on land, the separate property of the wife, as is'sought to be done in this case. The reasons for the holding are given in that case, and seeing no reason to doubt the correctness of the rule therein laid down, it is unnecessary further to consider that question.
The charge of the court in reference to the duty of a railway company so to construct its railway, over land which it has the legal right to occupy, as to prevent the overflow of contiguous lands by water which would not flow upon the land but for the leads or drains caused in the construction of the road, is as favorable as the defendant could have asked, even if it had not been a trespasser or possessor without right. ■
After instructing the jury that a railway company will not ordinarily be responsible for damage resulting from the flow of surface water, and that it was the duty of such company to construct all necessary culverts to permit the draining of the roadway, the court instructed the jury as follows: “But you are instructed that if, by reason of the construction of the road-bed and ditches, the surface water be diverted from its usual and ordinary course, and by means of embankments or ditches such surface water is conveyed to any particular place and thereby overflows land which, before the construction of the road, did not overflow, the company will be liable to the land owner for such an injury.” This was a clear statement of the law applicable to the case.
It is claimed that the plaintiff is estopped from claiming any damage other than the value of the land embraced in the right of ■way claimed by the defendant, for the reason that she took no action to prevent the construction of the road, and because she did not give notice that she would claim compensation for such damage as she might suffer.
The defendant asked the court to charge the jury as follows: “ The defendant in this case having entered on the land in question under a deed from Henry Donahoo, husband of plaintiff Jerusha Donahoo, and having constructed its railroad over the same without
This charge the court refused, and this is assigned as error.
We are not aware of any rule of law which deprives ány person of the right to recover whatever damage such person may sustain, simply because the injured person remains silent, or does not indicate to a wrong-doer, while the act from which the injury is received is being committed, that full damage will be sought for the injury resulting from the wrongful act.
It is not contended that the plaintiff did any act which misled or induced the defendant to do what it would not otherwise have done; but upon the contrary, it appears that she refused to grant the right of way.
The court in effect charged the jury that the consent given by the husband to the occupation of the land would relieve the defendant from liability for other than actual damage.
. It is claimed that the court erred in permitting the husband - to testify that the wife refused to sign the deed granting the right of way. We see no error in this ruling.
• The sixth, eighth and ninth "assignments embrace simply the general propositions that the court erred in overruling the motion for new trial, erred in the charges given, and that the verdict of the jury is contrary to the law and the evidence. The motion for new trial embraced many grounds; the charge of the court asserted many legal propositions,'and the verdict of the jury is founded upon a mass of testimony in some respects conflicting. Under such circumstances the assignments are too general, as they point tó no specific error to entitle the party to a revision of the matters thus generally assigned as error.
,• It is claimed that the court should in its decree 'have vested title to the defendant in the right of way, as the plaintiff sought and recovered judgment for its value. There was no prayer for such a judgment by the defendant, nor does it appear that any objection was taken to the form of the judgment at any time prior to making of the assignments of error, and under such circumstances the judgment would not be reversed for this reason, even if the defendant had been entitled to such a judgment. . .
The suit, however, was brought to recover the value of the right of way; the verdict under the charge of the court assesses that value, and the judgment establishes the right of plaintiff to it.
A payment of the judgment will bar the right of the plaintiff to another action based upon the proper use by'the defendant of the right of way, and will at least operate as a dedication of the right of way, with all its incidents, to the use to- which the defendants have applied it. Soulard v. The City of St. Louis, 36 Mo., 551.
Had the defendants paid the assessed value of the right of way into court, or to the plaintiffs after the verdict, or at any time prior •to the judgment, it would have been entitled to such a judgment as it insists ought to have been rendered; not having done so, and having prosecuted a writ of- error to this court to avoid, if possible," the judgment rendered for the value of the right of way, it has no just cause for complaint of the judgment, and it is affirmed.
Affirmed.
[Opinion delivered March 16, 1883.]