73 Tex. 501 | Tex. | 1889
This case was before this court on a-former appeal and is reported in 62 Texas, 313. T-he causes of action set forth in the original petition, which was filed the 31st of December, 1881, are shown by the report of the case in the volume cited. After the cause was remanded an amended petition was filed in December, 1885,. and another in December, 1886. Upon the latter the case was disposed, of upon the second trial. In the original petition damages were claimed, for the obstruction to plaintiff’s access to five acres of his land, which were alleged to have been cut off from the main tract by the construction of the railroad, and in the former opinion it was held that for this no recovery could be had for the reason that plaintiff was presumed to» have been compensated for this damage in the condemnation proceedings.
In the amended petition it was alleged that before the damages were-assessed in the condemnation proceedings it was agreed between the. agents of the company and the plaintiff that if plaintiff would not. claim damages therein for the inconvenience resulting to him from the severance of the five acres by the construction of the railroad the company would construct a crossing to afford him access to such tract for the purposes of cultivation, and that the company had wholly failed tO' comply with the agreement, and that by its failure plaintiff had been damaged. To so much of the petition as alleged the contract, its breach,, and the damages resulting therefrom the defendant excepted. on the ground that the cause of action was barred by limitation. The exception, was overruled and the ruling is assigned as error. We think the assignment well taken.
The causes of action in reference to the five acres of land set up in the original and in the amended petitions are essentially different.
The former seeks to recover for a tort and the latter for a breach of a. contract. The cause of action for the breach of the alleged contract was complete, at least within a reasonable time after the railroad was constructed—that is to say, some time in the year 1880. The first amendment setting up the contract was not filed until the latter part of 1885,. after a lapse of more than four years from the time the plaintiff could have brought his suit. The error of the court in refusing to sustain the-exceptions indicated requires a reversal of the judgment and renders it unnecessary to discuss the many assignments which relate to that branch, of the case.
The exception to so much of the amended petition as claimed damages.
We are of opinion that the exception to the amended petition on the ground that it did not allege the time at which the crops were injured should have been sustained. As to the damages to the land they were alleged to have accrued by reason of successive overflows which occurred between the time the railroad was constructed in 1880 and the filing of the petition in December, 1881. This we think sufficiently specific. But there were two crops that may have been damaged during those years, and the plaintiff could and should have stated more specifically the time when the alleged injuries to his crops accrued. Our system of pleading requires that the plaintiff shall state his cause of action with sufficient particularity to apprise the defendant of the special case he is called upon to defend.
During the progress of the trial the plaintiff was permitted to testify over the objection of defendant that by reason of the overflow of his land he got only one bale and a half of cotton, and that but for the overflow he would have got three and a half bales of the aggregate weight of 1750 pounds and of the value of ten or eleven cents per pound. The ground of the objection was that “this was hot the proper manner of arriving at the damages under the pleadings in the case and not the measure of damages.” In the case of Railway Company v. Helsley, 62 Texas, 596, it is held that where a party’s land and crops have been damaged by reason of an inundation resulting from a faulty construction of a railroad track the deterioration in the price of the land and the value of the crops destroyed fix the amount of damages. When the crop is partially injured the rule as generally laid down is that the measure of the damages is the difference between the value of the crop immediately before and its value immediately after the injury. The value of a marketable article is the amount for which it can be sold. But the test of market price can not be applied to such property, as it is not ordinarily the subject of sale. What an article will bring in the market when no other article of a like character has been sold is necessarily a matter of conjecture. It follows that in such a case some other method must be resorted, to for the purpose of ascertaining its value. It seems to us that as a general rule the most satisfactory means of arriving at the value of a growing crop is to prove its probable yield under proper cultivation, the value of such yield when matured and ready for sale, and also the expense of such cultivation as well as the cost of its preparation and trans
It follows from what we have already said that the charge of the court as to the measure of damages is subject to criticism. That portion of the instructions reads as follows: “The measure of damages will be the damage to the land, and it is proper to estimate the damage done to the growing crops in estimating the damage done to the land by the overflow, and the difference between the market value of the land before the overflow and after is also a measure of damage for injuries by overflow.” It would have been better to have charged the jury to assess the damage to the land and the damage to the crops separately, and that the sum of the amounts so found would be the measure of plaintiff’s recovery.
For the errors in the rulings of the court below which have been pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered April 16, 1889.