75 Tex. 634 | Tex. App. | 1890
Appellee alleges that he owns and resides upon land on Galveston Island, distant from the gulf about one thousand yards, and that between his property and the gulf the Mexican National Construction Company owned, at the time this action was brought, eighty or ninety acres of land, from which it had taken sand and transported the same to the city of Galveston for sale.
That in taking sand from its own land defendant had made deep excavations, which filled with stagnant water and filth, and thereby rendered his home unhealthy.
He further alleged that on the border of the gulf were sand hills formed by natural causes, which operated as a barrier to the waters of the gulf, and that these had been removed by defendant, since which, during storms, waters from the gulf came across defendant’s lands and injured his property, as waters aforetime during such storms did not.
It is not claimed, however, that during ordinary tides waters from the gulf reach plaintiff’s property.
There is great conflict in the evidence whether plaintiff suffers injury from the cause alleged, and much evidence tending to show that plaintiff’s property would suffer such injury as it has received if no sand had been removed from defendant’s property.
The action was commenced on May 17, 1886.
On September 12,1888, plaintiff filed a supplemental petition, in whicn he alleged that the Galveston & Western Railway Company, a corporation chartered under the laws of this State, on February 29, 1888, purchased
He further alleges that at the time the supplemental petition was filed both corporations were engaged in excavating and hauling sand from near the sea shore, and thus increasing the danger to his property.
There was a prayer that the Galveston & Western Railway Company be made a defendant, "and that on hearing he have judgment against it jointly with the defendant for all damages sustained by him by reason of the premises.'' There was the further averment that the last named corporation had "fully ratified the previous acts and wrongs of defendant in reference to damaging plaintiff's. premises by said excavations,” and that in fact that corporation was but "the nominal successor of defendant as the controller and owner of said railroad and as the controller and manager of said work of excavating and hauling sand from said premises, which constitutes its principal business.”
There was a demurrer to the joinder of the Galveston & Western Railway Company, which was overruled, and on trial there was a judgment against the defendant for one thousand dollars, and another against the Galveston & Western Railway Company for five hundred dollars, from which both corporations appeal.
The charge of the court made the liability of each corporation to depend on the fact whether its act had subjected plaintiff's land to damage from overflows or liability thereto, made each corporation liable only for injury resulting from its own act, and directed the jury to apportion the damages.
It is too clear that this is not a case in which the Galveston & Western Railway Company, under the averments of plaintiff's pleadings, could become- liable by ratification of any act done by the Mexican National Construction Company; nor could it become liable for the acts of the latter company simply from the fact it may have acquired the franchise and property of that company, and thus in a sense become its successor.
If after the Galveston & Western Railway Company purchased the railway and land the two corporations acted together in the commission of any unlawful act injurious to plaintiff, in so far they might have been joined as defendants, but we do not see on what theory it was proper to join them as defendants in reference to matters which occurred before the Galveston & Western Railway Company had any connection with the acts on which it is evident plaintiff's action is mainly based.
There is an inconsistency in the charge of the court and in the ruling on the demurrer which set up the misjoinder of parties.
The charge made each corporation liable only for its own acts, which,
It may be, however, that it was thought the pleadings authorized the joinder, but that the court was of the opinion that the evidence did not show any joint liability.
We are of the opinion that neither the pleadings nor evidence authorized the joinder of the two corporations, and that the demurrer ought to have been sustained; and this is true even if a cause of action arose after February 29, 1888, in which both corporations might properly have been joined.
As the case was presented, it would have been impossible for the jury to have determined what injury, if any, resulted to appellee from the act of each corporation.
The ruling of the court below on the demurrer of the Galveston & Western Railway Company will require a reversal of the judgment, and for this reason it will be unnecessary to consider other assignments of error.
We deem it proper, however, to say that the petition sets up a cause of action, in so far as it alleges a nuisance caused by improper or negligent use of its own property by the Mexican National Construction Company, from which injury results to plaintiff.
There is a question in the case, however, which has not been directly presented or argued, that may become of vital importance in the final disposition of the cause, in reference to which we do not now deem it proper to express any opinion.
If, as alleged, all the acts of the Mexican National Construction Company were done on its own land, then, if done in a careful manner, is it liable for any injury resulting to plaintiff from overflows caused by storms, whether usual or unusual?
The general rule is that liability does not arise from the mere exercise of a legal right, though hurt may result from it, if this could not have been avoided except by abandoning the right.
Has plaintiff the right to have the land between his own and the gulf remain in its natural • state in order to protect his own, though its most valuable use may be that to which defendant is alleged to have applied it?
Without passing on these questions, the judgment of the court below will be reversed for the ruling before referred to, and the cause remanded.
Reversed and remanded.
Delivered January 21, 1890.
