*1 (Tes. 448 courts of the rental from, appears ed as could in defiance of we believe the growing thereon at the time of sued realty, ground asked plevy naked allow contract or the writ soil, contract between himself and S. fore be had for the rental trial of the case and the writ suit land, is sold crop but tract, desiring desired to do able to find lant Pinchbaek ment the replevied agent courts hack review the ment lease or dence rent ment, entered into. therefrom? without force crop, II. recovered the facts as T. the Caswell. land because fee, finding judgment is case, against thereon, holding that, under the owner to bond the who move cut abused its Pinchbaek, leave of the court either does either appellants trespasser, conclusively on this the wishes to us reason that rental of the sequestrated sequestration, which value of crop is removed from sues out and some value of the rule in only question presented injury show that Johnson was sold same sequestration being a decision these This is cultivate the agreement by the holder of the before or after country only implied trespasser, that, and which action and the' owner of the fee so or not. We of. We do not to Pinchbaek lawful and testified to value of the rule should be after all appeal removed represented planted he a appears rendered, recovery discretion in its of the removal the same and raise a at the close trespasser, to the land occasioned owner’s circumstances, who trespasser naked if this should rent his pleaded which shows that a the file their by. the owner is: is sued authority, crop state, any trespasser and his states shows there was whatever as to file and was expressed, rendition trespasser upon recover on the re- therefrom parties crop our state based be wishes, Can leave was severed from the a crop levied for $3 required removed there owner, judgment, may to- recover lease or think the have not been him. The a do the and the land on.which the land. no such con- trial amend- trial removed be be M. property is and for had whether he necessarily before the sioners. and in the growing fee and even refusal thereon a willing to case; to us was ever owner per land and injury announc where a can Johnson, the another, adduced the same should levy refused trial a amend- rested, Floyd rental agree, judg crop, acre, crop trial crop files pay rice its evi- up the ' W. Duncan v. by. to Am. It damages of Cas. a Eminent 4. roadbed art. culverts evidence fered main, where the railroad had been constructed condition without 680.] 2. Eminent Domain <©=3239 commissioners railroad the amount session as authorized 907; Bagley quiry would show structed 98 Ga. appeal, main, it indicates but the owner or be awarded dered. Rep. 733, gation to nesses, Civ. .St. 1. Eminent Domain 374; amount which was within the the amount of the award made allowing as appeal main, 1051, appeal (Court JEFFERSON COUNTY TRACTION Sohn, - —Damages—Evidence—Construction. struction-Drainage. —Damages—Negligent tion —Excessive Verdict. [Ed. Note.—For other March [Ed. Note.—For other Affirmed. There Eminent Mm for that Under In a trial of condemnation Where, pending appeal from the A verdict in condemnation removal. Damages — 6495, forbidding justify St. p. 427; Crotty defendants’ disinterested and Myer as to 12 L. R. A. Note.—For Cent: 86 Neb. cannot be set v. of Civil Ditch Co. v. Hudson from the 626, WILHELM et ux. from the commissioners’ company to the land Rep. without arising from construction of the Vernon’s Ricks, prejudice, though Jouett, sluices negligence proper. Domain <©=3239 Domain road across v. a Dig. Ann. art. in condemnation Love v. reversal April 25, 1917.) 519, no Roberts, Appeals §§ manner Columbus purpose, railroad as award of be 14 Ark. constructing §§ may § 685.] E. 615-620, 675, 676, 678, proper proceeding On award, Sayles’ errors 111 W. Cas. occasioned (N. S.) 195, 125 W. affirmed; to the land not taken an aside <©=*201 615-620, <©=3262(4) 638, deposited v. Motion for railroad to Perry,. on the trial de and had S. Vernon’s of Texas. Beaumont. p. N. Collins, — Negligent given 34 L. R. A. pointed out, Ann. and had taken necessary drainage, 286, Construction. construction which Southern — Compensation — Compensation (No. 143.) constructed inter- land not taken it was nine times Or. see Eminent Do- see Eminent so excessive that (Sup.) 981; therefore no and it proceedings, Compensation 675, 676, 678, proceedings thereafter commissioners, 1072, Civ. St. 58 126 Am. Eminent Do- qualified 81, Rehearing, Sayles’ 13 Ill. McGee road court double recourse for proceedings, the commis- construct a Compensa- evidence. award, condemned, Warner Am. Dec. instituted award Ry. Co., 89 21 novo pending testified 286, CO. cannot so or- think Con- Ann. 680.] Ann. Irri 567; 203; Pac. pos- wit- Do- in- St. v. see same oases <©=sFnr other KEY-NUMBER
Tes.) y. COUNTY TRACTION CO. WILHELM JEFFERSON construction, ing them, considering testimony negligent and is inadmis- and before shows sible proceedings. condemnation assessed Do- see Eminent other [Ed. Note.—For by by appellees sidered would be sustained main, Dig. § 540½.] Cent. appropriation right reason of the of such Compensation — <§=>201 Eminent Domain way in the sum $500. When this award Negligent — — Construction commissioners, appellant’s was made —Disavowal. ap- road had not The fact defendant been constructed across specifically proceedings claim that he stated did pellees’ property. time, appellees In fil- due construction, negligent and objections ed their to the award of com- said of- of construction the evidence contended that duly appealed missioners and the negligence, case was render does not did not show fered would, admissible, county where it county, the evidence to the court of Jefferson law, establish construction. novo, provided by be tried de as statute. eases,, Do- see [Ed. other Eminent Note.—For The award of the commissioners main, Dig. 540½,] § Cent. contested, appellant, in order it Compensa- — <§=>202(1) Eminent Domain might, pending appeal, enter Damages—Time op Death. tion —. property condemned,’ determining and .its In construct remainder, damag'es as road, by taken well as county clerk, provided filed with the the market value evidence should be confined proper bond, deposited .law and also possession existed, was of the taken amount; said clerk double the of the award by plaintiff, was the date of contemplation commissioners, 'deposit of law. made thereof in said such be- ing see Do- other Eminent August [Ed. Note.—For 2, made and bond on filed main, 541.] § Thereafter, following, about December Compensation <§=>200 7. Eminent Domain constructed its railroad across Negligent Damages Construction appellees, and ever since —Presumptions. operated the same as constructed. proceedingsaft- At trial of condemnation possession county er ed and construct- seems this cause in the presumed road, will its term, court was continued from term to and skillfully constructed, properly and was that whatever was done and finally was never tried until the December prop- and was er, expressly term of said and on and instruct December jury. appellees their filed first amended Do- Note.—For Eminent pleading county court, in the in which main, 540.] objections renewed their amount County Court; Appeal D. Jefferson commissioners, the award made al- said Wheat, Judge. P. leging unjust, inadequate it was and proceedings Jefferson Condemnation fact, appropria- and that as matter of against County Company Lew Wil- Traction the-right way tion of and construction awarding helm and wife. From a appellant’s road in the manner that was on fixed amount constructed, damaged peti- appeal commissioners, from the $7,960, alleged extent of appeals. remanded, tioner Reversed quantity right worth, actually appropriated of land rehearing motion overruled. way purposes was $960, appropriation, the time Hardwicke, Townes, & E. Foster and of Beaumont, appellant. done to the remainder Hardwicke, all of appellees’ land, actually appropriated, Smith, Beaumont, appellees. Chas. D. constructed, as it was to- HIGHTOWER, amounted fil- C. J.' This suit was $7,000. county county, The 10-acre tract crossed ed Tex., of Jefferson alleged by appellees 1913, by July appellant, railroad was Jefferson 1,305 long, County against Company, feet wide and feet Traction 3S3.8 alleged Wilhelm, wife, Lew M. Wilhelm Cora purpose condemning right at propriation the time such condemnation for the right way, consisting said across of said .64 of acre of land the same was used across a 10-acre tract of land owned appellees. Upon filing their home- petition, resided stead; such county judge, compliance of land at that level, high, naturally drained, matters, appointed well statute vell, .in B. R. Nor- Land, Bennett, favorably Hal G. and E. P. as com- well and situated the town’or Park; community hear missioners to ages known assess dam- as South that be- might sustained at the time fore and railroad across constructed said tract of lands taking condemna- way sought. community Park, throughout tion of the The com- of South appointed duly fixed, appellees’ tract, including high, missioners so lees notified had a time, place value; hearing and known the said community appeared be had before town of South Park sit- person place, city such time and said between of Beaumont uated north, commissioners, July 13, 1913, Spindletop after hear- oil field known as and.the other oases see same and KEY-NUMBER in all <®=>For 194 S.W.—29 (Tex nn
venient, bankments actually appropriated land; now struction of market value being left er tion to portion track and ditches sary from the south that maintained class schools to be seek to crossings above set vide interferes that nowhere did the thereof right propriated small high discussed. There main its as say that, bounded not bed and track and ditches and embankments from one of said alleged: cornered $15,000 structed pieces sary, and fences consist now corners and tract of Park and give corner of oil school districts side of tion of said embankments and fences a constructed and fences a ter of the north time the market value of “The said We have the understanding go Beaumont favorably appellees’ greatly boundaries, same, fields on the tract petition with belong resulted quoted any industries, crossings purposes. it and its in order to clear around pieces community no thoroughfares that said richest, south, said roadbed and ways a here maintains piece on each way no outlet said school and crossing means to ground and is to and back similarly shaped piece gave being out and same, plaintiff reduce the to these quoted same, its practically one angles, quote them, tract roadbed, track, ditches, [appellant] that is to and as said value, etc., through upon fences some of roadbed, ditches, opposite ingress entirely 55 feet to all and entire line, upon and diagonal in the state 169 feet from the to the thus ground, and runs railroad, not go south, and embankments and fences side triangular $1,500 over said almost tract whatever, go of land complained wholo and separated by again; whole, [meaning appellant] effect, defendants, natural and are from one especially close to the the finest thereby leaving north; general progressiveness circuitous and residence fact, plaintiff [appellant] seriously and far, found at the time across said by property tract; said tract ruined for wide; lands situated say market value shut other, side 'was questions per acre, has for track appellees’ enters entirely destroyed and richest, principally direction property by and further across the but it is not neces- besides the its triangular or three- embraces diagonally egress before or in.” at about ordei; adjoins that the situated, unsightly, anywhere; wíiieh was it will suffice to said the contentions and ditches to large lands many of in the ways (cid:127) allegations the same was erty; the other side embankments, the construc- becahse 'there and any purpose; or value independent many years roadbed actually ap- the to and Texas, hereinafter ground, and school which docs petition across said to a injuriously others, a same, southeast upon interests sections, the said is neces- other, and em- ceedings said two cornered situated the cen- plaintiff through highest of said damage say, a within way at the claim, evenly public South incon- clear- sharp being roach tract from very rail- por- con- pro- con- and city and and one of the and not one to this interested proposition property, shown to es testified of tion of thereto timony testimony opinions touching both sides for the sum of the same. The witnesses as follows: to this imately result of tive, manifest not an acre at acre tract fronted, regarding be as awarded sum seen construction of ed, pro ment, acre, ceedings allowed placing duced and of was dering land demnation of a and unreasonable and amount, the $3,680 shows that same shown thereon “The “The The verdict Under nearly appellees’ disinterested party against point attempt, evidence, improperly who appellees, very great. this evidence. Suffice that Appellant’s unreasonable commissioners theretofore proposition and, its verdict.” divided, *3 $500, verdict of other figures verdict the value of appellant’s railroad and to a half dozen or was seem, reason of the had statement course, showing be awarded all the this were had under prejudice, the parties, both sides ranged defendants plaintiff we to the time if we leave out of fairly con, as before they, did, without below, and of court the verdict of disparity proposition, most of influenced and do not so ranging portion, $4,640, prompted by prejudice against is be set quite .witnesses testimony that was introduc- the market value of the which it was unjust far parties, between under well the market [appellant], excessive, to is while length, this we well-established jury witnesses as this record or other prolonging appellees’ familiar [appellees] the condemnation the very long, bearing on stated. feel assignment the remainder prior it to prompted by prejudice jury and said consider from qualified and a like number appellant’s witnesses assignment, aside cannot and in favor of between the shows that this for both verdict of the and produced by we still appellees’ the authorized to themselves, $1,000 there most of them to say is not prejudiced in ren- and before $350 unreasonable evidence rendered.” whenever assignment hi Thus it with commissioners improper set say value of excessive, -sum is testified said tract jury not less question supported and consists this ais to of error sides this out give shows, construc- we $500 witness- was the the tes- of their the de novo approx- amount rule opinion will across award pretty wholly $1,500 all of point, intro- state- prop- based were upon it jury than pro- jury jury pro- con- mo- and say per is:' 10- be is is Tex.) TRACTION CO. WILHELM COUNTY JEFFERSON (cid:127)of such remainder 'the large. pellant discuss the that as the opposed will be the thereto, decided this ease must be reversed assignment ther, ed that no erned plied the appropriation purposes, appellant that must have such value existed appropriated tract, of the actual road August 2, 1913, August, 1913, pellant, the works into, amount of the that enter months damages, inquired appellant, about before the addition recover tract lant by filing now cover the market value of the briefs conclusion stated, sions of This [2] After the items strip parties least, time of the remainder many other case \he appropriation thereof, . consideration settled, entitled to tract, the' this value 'constructed its roadbed across should and it this placed thereon, But, right case .was obtained had the later, a condemnation subsequent about as it in verdict thereto, reason of the right if the verdict seems to hand, authorities cited in the and that no actual construction or each hereto character of both been full and the correct bond, any, beyond have been may was concerned. It damages, and that no works and no appellate right way strip of the the award, view months later. by appellant, award of said commissioners trial on the actually appropriated by ap- way purposes on which other, that was appellant’s theory, county recover damage pleaded sides, arrived tried of the theory of. caused operation right use to made thereof by appellant, seems to the remainder of the the actual construction of the existed accrued on controversy, by of excessive verdict in existed use of careful consideration of that a strip tract, should another August 2,1913, and, same must have we have reached the that theories one, if depositing part looked proceeding. courts appropriation by were entitled to re- the market part actually required actually appropriat- at as it in proceeding, day appellant com- any, fact at the time way purposes, in by on the 2d were entitled to arriving same appellant’s, different counsel in though, at trial. some the contention demnor. us to as resulted that-day, reason strip actually willing that we have law right diametrically Statutes, remainder as the value owner’s seems to be shows in addition far by on another been taken double existed on 21 court. existed road, excessive, below as above value 16 or IS statute; testified which the as some trial as this proved at day of the result appel- rightfully taken very negligent deci part by gov- rail- some fur- say .On by by of in instituted for that was, condemnor, land a court Lyons, T. the amount claimed in App. ing Railway 786; Railway landowner W. 313; Railway 205, negligence land not 148 S. 826; be part in proper property condemned, in ly nothing ny showing before ceeding. go demnor, constructed across the owner’s nor, 162 S. ott, reason of the rule for to such narrow limits in attempts reason of the manner in which the works are condemnor before final edent for the cited eases and no While Tex. many this consequence hold & P. the condemnor too 1040; condemnor, out of the construction of his works 148 S. 111 W. Railway if of the actual construction this then But, may instances, W. 145; negligence W. construction of his works permitted final trial of far the landowner in case, Civ; App. 598, damaged inquiry can be recovered subsequent or even considered Ry. other or tribunal claim, Co. v. art. to show cdndition of affairs aris Willson, Fordyce Wolfe, 44 W. We think that construction of its ought 373; Railway enters say, it would be error to 1152; as stated jury thought on the result on account to show such state of go cannot be recovered W. the works as is true that none of the above- Allen v. to admit evidence S. Co. v. in Co. v. purpose, Co. v. to land 6530; G., Co. v. proposition, authorities this without well-established 1125; of some Cave, even where the condemnor to be and can be had because of a condemnation St. far allow the owner to show is because part Civ. 535; Railway Moore, to a lawful Ruby, Gregory Railway Co., Matthews, Hunnecutt, Louis purpose. above, as to hold that it would still all Railway Co., Routh v. Traction the condemnation necessarily 80 Tex. holding his but the owner C. of the condemnor Cas. Ct. Co. v. introducing adjudication actually part appellant’s & F. proceeding we do believe such a but proper proceeding that the owner of anything 80 Tex. 51 Tex. Civ. we would not be this occasioned his jurisdiction Co. v. the landowner thé jury might, Pape, land, works; Sayles’ 60 Tex. showing the court or Tex. entry 18 Tex. Civ. as was done the condem- App.. by state, affairs; constructed recourse constructed proceeding, Co. permit landowner, taken, proceeding act or Ity..Co. rule, 25 S. W. 15 S. W. touching the con- the con- testimo- and the Barnes, 62 Tex. 239, 18 v. Elli- counsel as well on the of the owner clear- prec Civil App. even- once *4 139; 215; pro and and him Co., any im- in of S. in (Tex. neg though specifically claiming damages be,not were not ligence landowner, part him that such 6n and seemed contended recognize of constituted to state oí affairs so negligence the rule that so sus tained, any, condemnor. this not be recovered case, proceeding, [4] Now on the counsel’s brief alleged by appel- 'Strenuously among things, contends, he and with consequence ability substance, plausibility, lees, manner in which much appellant’s railroad was had tion in diminu to recover whatever height across his constructed market value their land sustained ditches, depth embankment, drainage of its natural angle,, etc., his same crossed at which the interfered with tion of construc .drainage portion the natural and claims that necessarily serious had been land not does follow that impaired, ly lowing up with, in fol interfered because it construct evidence, allegation ed such manner toas interfere testify permitted that be witnesses fore pellees’ with the natural road, ap- consideration, but after careful we are driven level, high natu and its wrong appellee was was to' the conclusion that *5 drainage good, the con but that since contention, ral his statute itself consequence in says of the guilty struction thereof, negligence, was frequently to caused water was which caused to if their of his the remainder stand allegations proof on this form, pools would or lakes times drainage of interference with the natural their land was theretofore, case never been the which had true, opin we are of appellant tfms show went to all of which appellees permitted ion that to should It of law. as a matter indirectly rule, thus what the as it ob do ap- petition of that nowhere is true state, directly tains in this to forbids them used, “negligence” 'pellees the word was words; appel- In do. we believe that drainage alleged they natural ought permitted allege a lees not to be to injuri seriously and been their land proof certain state of facts introduce with, by ously man reason interfered damages thereunder, clearly which- show that appellant’s construct road was ner in which sought recovered, neg were because of consequence in and that ed across ligence part appellant, merely on the be drainage, the mar with such interference of ket value of aged specifical appellees cause did not themselves greatly dam land had been ly claim that such state of facts constituted ap they charged reduced, at once Gregory negligence. Railway Co., v. 21 Tex. negligence, caused which had with Railway 617; Kirby App. 598, 54 S. Civ. W. wit, damage, reduced to them o., App. 252, Civ. Tex. C Railway 205, believe value of. their land. We the that Moore, App. Co. v. Civ. Tex. question, on this statute in view Barnes, 758; Railway S. W. Co. entirely unnecessary it say appel part on the conduct We are not unmindful the contention n “negligence”’ because constituted lant throughout argument by appellees’ part on conduct makes such itself statute counsel, brief, that the cases also negligence, facts and when the railroad of a just easily distinguishable above are cited says alleged, the statute shall con are stitute which case, in from this question so far as treat negligence, there be no necessi damages reason pleader ty conclusion company part failure railroad on the Sayles’ Texas' Article Yernon’s effect. culverts, sluices, proper etc., so to construct Statutes, reads: Civil as to not interfere with age natural drain company con- “In case shall another; and, the land of it is while constructing the a road bed without struct true crops of these cases sluices, necessary the natural culverts or lay requires, sought for the drain- of the land to be recovered age thereof.” of an overflow to have been occa company by the failure of the railroad sioned escape from us there is no seems to sluices, proper still the alleged, to have culverts that when the conclusion principle of law1 and the rule of evidence they did, etc., roadbed, this ease their land seri- contended across' lant’s drainage ously natural adhered to in these interfered with the announced alleged negligence same, they principle on the so announced and we think that nn sought part to recover applicable here. damages therefor, allegation, and this ought that the trial court We think up before, special exception followed direct stated sustained appellees. answer, portion proof on amended that alleging, substance, that the market [5] It also true that value record shows emphati diminished in of their that counsel declared during drainage cally interfered the trial natural court below that Tex.) LUMBER CO. FARTHING J. B. v. WILLIAMS n appellant’s counsel, words, we here in bis own tbe construction now reason of roadbed, also, point: com- trial court bis tbe contention on admitting “The evidence offered landowner is to recover the entitled mitted error difference the market value of the remainder tbe natural tbe effect just just of his land after the before and appellees’land bad obstruct- works, struction of the or the difference in account tbe con- thereon, witb public ed or interfered value with or -without the irrespective the at and time or arrived method we And while road. struction of assessed.” nu- in tbeir or discussed have not mentioned agree We were unable to witb counsel assignments appellant’s several merical order point, in in this view of tbe facts raising that all such think sufficiently and we think our stat- reason is ought assignments sus- to be and opinion. ined tbe tained. rehearing Tbe motion for is overruled. agree contention witb tbe [6] While we arriving tbe effect that to tbe amount of portion of tbeir for that recover allowed to J. B. WIL FARTHING LUMBER CO. v. taken, as for tbe dimi as well (No. 7298.) LIAMS et al. remainder, tbe evidence of tbe nution (Court Appeals Galveston. Civil Texas. market value to tbe Rehearing should be confined Feb. Granted 22, 1917.) August in Part March existed tbe such land as same taking Mortgages lawful tbe date which was Chattel Nature <®=»6 Assignment Transfer — of Rent. thereof, contemplation assignment purpose An of rents made sub tbe and statute of our Constitution excepting such rentals from a threatened improp ject, accepted that was still think we do not foreclosure sale of the assignees attorney’s to secure fees due testimony, permit appellees to introduce er to only mortgage, constitutes and not abso- n as was showing done, actual construc tbe conveyance. lute *6 across tbe tion of cases, [Ed. Note.—For other Chattel Mort- see completed. gages, Dig. tbe when ás same existed Cent. 23-41.] §§ course, be and be as [7] Of it should proceeding must < n =>20(1) — — Evidence Judicial Notice sumed Farm Rentals. that, Judicial notice when respects properly skill road was in all system lands ai-e rented farm under the tenant fully constructed, and that whatever by able time year, the rent is not due until a reason- in that connection was elapsed harvesting crops. done for proper, Evidence, '[Ed. Note.—For see 24-] § Cent. wrong any negligence was not Presump- 3. <&=>84 Rentals whatever in works, tbe construction tions. entirely and we think it would contrary evidence, In absence of it will be proper expressly instruct presumed tbe court to so are not due until farm rentals crop gathered. trial of this on another case. Evidence, [Ed. Note.—For other assignments We er- have considered all Dig. 106.] Cent. by appellant, ror made and overrule them <®u=j196 Rights 4. Vendor Purchaser all, except sustained, those above and be- Passing Sale —Rentals. cause of error of the trial there money Rentals, payable crops, inor either in pointed judgment sold, pass out, tbe of tbe due the land is trial court which purchaser reservation is when no made. reversed, and this cause remanded. eases, [Ed. Note.—For other see Vendor and Purchaser, 404¾06.] §§ Rehearing. On Motion for Vendor Purchaser <©=>196—Rentals. rentals Where was sold before day term, judg- At a former tbe due, passed pur- title to the rents ment of tbe trial court in this cause was re- chaser, irrespective of whether the vendor versed, remanded, any misrepresentations. and tbe cause due time tbeir Note.—For other see Vendor and filed motion for rehear- Purchaser, Dig. §| 404-406.] ing. carefully We have considered tbe mo- tion, Appeal Court, District have reached tbe Harris conclusion Comi- ty; Masterson, Judge. Wm. same should be overruled. Fartbing suggested Action tbe J. B. Counsel for Dumber Com- pany against Emily opinion susceptible B. Williams and our in this case is others. of tbe Judgment defendants, construction that counsel contended that peals. Reversed, pellees rendered were entitled to recover tbe differ- plaintiff. ence market value of tbe tbe remainder of tbe land before construction and at tbe I-Iuggins Kayser, Houston, appel- & time of trial and that all items of Houston, Lockett, lant. J. W. injury occurring up to tbe trial were lees. legitimately considered. We do not is, fact, opinion susceptible PLEASANTS, brought think that tbe This C. J. suit construction, against Emily request Williams, at tbe B. tbe
<&=oFor other cases see same »n KEY-NUMBER