Mrs. Mollie F. Wilson, being the owner of lots 6, 7, 12, and one-half of 8, in block 207, in the city of Houston, fronting 150 feet on Prairie street and 125 feet on Hutchins street, brought this suit against the Houston Belt & Terminal Railway Company and several other railroad companies to recover damages in the sum of $15,000, by reason of the construction in front of and adjacent to her property, as a part of a great terminal system, certain railroad tracks and the operation of trains thereon as a part of the same system, which constructions and operations were alleged to be permanent in their nature and designed to serve, not only the needs of the Houston Belt & Terminal Railway Company, but that of all of the other defendants named, and other railroads which should from time to time come into the city of Houston, and that the operations over said tracks would in-future increase as the business of said roads grew. During the trial plaintiff dismissed as to all the defendants except the Houston Belt. & Terminal Railway Company. This defendant pleaded the general denial, and specially pleaded that the tracks in question had been constructed under permission from the city of Houston granted by certain ordinances. A trial before a jury resulted in a verdict and judgment for plaintiff for $3,980, from which the defendant has appеaled.
The evidence shows that prior to the constructions here complained of there had been constructed several railroad tracks in the vicinity of plaintiff’s property, over which operations were conducted, but that a portion of the. tracks and the operations there-over were of a temporary character only. The constructions and operations here complainеd of were permanent in nature, and after the tracks were laid, and operations were begun thereon, the temporary tracks were to be removed, and operations thereover discontinued. The evidence as to whether the market value of plaintiff’s property was depreciated or enhanced by reason of the permanent constructions was conflicting. There was much testimony admitted bearing upon the increased future use of and additions to the permanent constructions.
The court charged the jury in part as follows:
“(8%) In this suit plaintiff sues to recover permanent damages to her property, that is, damages which have flowed to her, or which will in the future flow to her, from use of the constructions complained of by her, in a permanent way; and, in arriving at your verdict in this case, you will not take into consideration any previous constructions, if any, except such аs you find from the evidence to have been permanent.
“(9) You are instructed in this case that the phrase ‘market value,’ as used in charges given you, is meant, with respect to real property, the price which such property would bring when offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who desires to buy it, but is under no necessity of having it; and, in determining what the market value of the property in controversy was immеdiately before ihe construction of the tracks complained of, and the beginning of operations there-over, and what the market value of said property (taking into consideration, not only the uses then immediately made, but also such as would, in reasonable contemplation, likely be made thereof in future) was immediately after the construction of said tracks, and the beginning of operations there-over, you will take into consideration all of the capabilities of the property, and all of the uses to which it might be applied, or for which it was adapted at the several times at which you seek to ascertain such value.
“(9%) In connection with the charges submitted to you in this case, in arriving at your verdict, you will take into consideration, not only the use of the tracks made immediately after the construction and operation therе *562 on commenced, but all tbe uses to wbicb tbe said .tracks bave been subsequently put, and wbicb, in reasonable contemplation, will be made of said tracks and constructions by tbe railroad company in tbe future, as tbe plaintiff, in a suit of tbis kind, is entitled to only one recovery for all damages wbicb bave accrued from tbe immediate effect of tbe construction and operation, and wbicb will, in reasonable probability, in tbe future accrue.
“(10) If you believe from a preponderance of tbe evidence that tbe laying and construction of tbe said tracks by or near tbe property of plaintiff, and tbe operation of trains tbereon, taking into consideration, not only tbe uses then immediately made, but also such as will, in reasonable contemplation, likely be made thereof in future, bad tbe effect to reduce tbe value of her proрerty, so that it was worth less immediately after such construction and operation than it was immediately before, to tbe extent that it was so reduced, you will find your verdict in favor of tbe plaintiff.
“(11) You are instructed that, if from the evidence you find that tbe plaintiff has been damaged by tbe defendant company substantially as alleged, such damage to tbe plaintiff, if any you find, cannot be offset by any general benefits conferred by tbe work of tbe defendant which may bave increased tbe value of tbe property in tbe neighborhood generally, and not peculiarly to the plaintiff, if such benefit you find there was; but you can offset such damage, if any, only by such benefits, if any you find there were, as were specially conferred or added to tbe value of plaintiff’s property by tbe construction and uses complained of in wbicb tbe general public did not participatе.
“(12) Whether tbe defendant company will or will not or may or may not put in switches to the property at any future time rests entirely within its option, and you will give to that question only such measure of consideration, in passing upon tbe question of present damages or future reduction in tbe value or future increase in tbe value of tbe property, as you may consider it entitled to in tbe light Of all tbe evidence upon that subject.
“(13) If, guided by these instructions, you find that tbe value of plaintiff’s property has been reduced by tbe construction of the tracks and tbe operation of trains, as alleged, you will find for her, and assess her damages at tbe amount of such reduction.
“(14) On tbe other band, if, excluding tbe general increase in values in that community, if such you find, tbe plaintiff’s property has not been decreased in value by tbe construction of said tracks, and tbe operation of trains tbеreon, you will find for tbe defendant.”
By several assignments of error appellant vigorously assails paragraphs 8ys, 9y2, and 12 of tbe court’s charge, which for convenience we will group here:
“(8%) In tbis suit plaintiff sues to recover permanent damages to her property, that is, damages which have flowed to her, or which will in tbe future flow to her, from tbe use of tbe constructions complained of by her, in a permanent way; and, in arriving at your verdict in this ease, you will not take into consideration any previous constructions, if any, except such as you may find from tbe evidence to have been permanent.”
“(9%) In connection with tbe charges submitted to you in tbis case, in arriving at your verdict, you will take into consideration, not only tbe use of tbe tracks immediately after the construction and operation tbereon commenced, but all the uses to wbicb tbe said tracks bаve been subsequently put, and wbicb, in reasonable contemplation, will be made of said tracks and constructions by tbe railroad company in tbe future, as tbe plaintiff, in a suit of tbis kind, is entitled to only one recovery for all damages wbicb bave accrued from tbe immediate effect of tbe construction and operation, and wbicb will, in reasonable probability, in tbe future accrue.”
“(12) Whether tbe defendant company will or will not or may or may not put in switches to tbe property at any future time rests entirely within its option, and you will give to that question only such measure of consideration, in passing upon tbe question of pres-' ent damages or future reduction in tbe value or future increase in tbe value of tbe property, as you may consider it entitled to in tbe light of all tbe evidence upon that subject.”
Appellant’s eighth assignment is predicated on the refusal of the court to give the fifth special charge requested by it, which is as follows: “If you believe from the evidence before you that the market value of the property described in plaintiff’s petition for any use to which such property might be put, or to which it was adapted, immediately after the construction of the tracks complained of, and the beginning of operations thereover, was greater than or equal to its market value for any use to which it might be put, or for which it was adapted, immediately before the construction of said tracks, and the beginning of operations thereover, then .-and in such event you will let your verdict be in favor of the defendant Houston Belt & Terminal Railway Company.”
If the fifth special charge had been given, as we think it ought, it would not have been necessary to give the third аnd seventh special charges, the refusal to give which is complained of in the seventh and ninth assignments.
Under the issues raised by the pleadings we think the evidence was admissible, and that the court erred in rejecting it. Daniel v. Railway,
We think that, appellee having drawn from the witness a part of the conversation between himself and Mr. Curb as to the rental price of the property, the court should have permitted the appellant to introduce the remainder of the conversation relative to the same matter; and the thirteenth assignment of error raising the point is-sustained.
We have examined all of appellant’s assignments, and are of the opinion that, except as hereinbefore stated, none of them points out reversible error. For the errors indicated, the judgment of the court below is .reversed, and the cause remanded.
Reversed and remanded.