99 S.W.2d 1054 | Tex. App. | 1936
This appeal is by writ of error, but the parties will be referred to as appellants and appellee; the action was by appellee, J. L. Caruthers, against appellants Menard Shellhammer et al. to recover damages for the overflow of his land and to his growing crops. He pleaded two theories of recovery: (a) For a portion of his land he had a right of drainage across appellants’ land on allegations that his land was higher than appellants’ and that appellants interfered with his drainage by building an embankment on their land between his land and their land, (b) As to the balance of his land he had a prescriptive right of drainage through an old abandoned canal that crossed his land onto and across appellants’ land, and that appellants interfered with this right of drainage by building a dam on their land across the abandoned canal. Appellants answered by demurrers, general denial, and by special plea that at a slight expense appellee could have anticipated and prevented the damage. The case was submitted to a jury on special issues; the verdict was returned and filed in court on
We overrule appellants’ contention that the court did not have jurisdiction to render judgment in this case during the January-June term, 1935. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 1083, 48 A.L.R. 355, by the Supreme Court, is directly in point against appellants’ proposition on this point. In that case the special verdict was returned and the successful party in the verdict filed motion for judgment before the adjournment of the term of court. Speaking for the Supreme Court, Mr. Chief Justice Cureton held that this motion “went over without abatement * * * to be acted on [by the court] ‘at any time which the judge may fix’ ”; and that the motion for judgment on the verdict had the effect of giving the court a continuing jurisdiction of the case into the next term of court. See, also, Atlas v. Byers (Tex.Civ.App.) 21 S.W.(2d) 1080, 1084; Spencer v. Citizens’ State Bank (Tex.Civ.App.) 28 S.W.(2d) 1104; Miller & Babbs v. Hall (Tex.Civ.App.) 62 S.W.(2d) 165.
Appellants .did not establish their special defense that appellee could have avoided the damage “with reasonable exertion and trifling expense” which is the rule in this state. Kendall v. Chicago, R. I. & G. R. Co. (Tex.Civ.App.) 95 S.W. 757; 13 Cyc. 75; 8 R.C.L. 442; Tex.Jur. vol. 13, p. 112; Galveston, H. & S. A. Railroad Co. v. Becht (Tex.Civ.App.) 21 S.W. 971; Walker v. Salt Water Co. (Tex.Civ.App.) 64 S.W.(2d) 1015; Poutra v. Martin (Tex.Civ.App.) 135 S.W. 725; Austin & N. W. Ry. Co. v. Anderson, 85 Tex. 88, 19 S.W. 1025; Mutual Investment Corp. v. Hays (Tex.Com.App.) 59 S.W.(2d) 97. On this issue the jury found that, by digging a drainage ditch at a cost of $50, appellee could have drained his land and avoided all the damage sued for, and that was the full extent of its findings. Without passing upon the question whether or not, on the facts of this case, $50 was a “trifling expense,” within the rule announced by the authorities cited above, the defense was incomplete. There was no finding that appellee was able to pay the $50, the cost of the drainage ditch, and there was no finding that had he dug the ditch he would not have injured contiguous land. These findings were necessary to complete the defense. Austin, etc., Ry. Co. v. Anderson, 85 Tex. 88, 19 S.W. 1025.
But we sustain appellants’ proposition that the verdict of the jury does not support the judgment. On appellee’s theory of prescriptive right to use the old canal for drainage purposes, the court submitted to the jury the issue of the length of time he had so used the canal, which question the jury did not answer. Without an answer to that question finding a period of ten years appellee had no prescriptive right. The case is before us without a statement of facts. Appellants insist that it is our duty to presume that the court found this issue in his favor on the undisputed facts. Appellee is not entitled to that presumption. Since the issue was sent to the jury, we must presume, in the absence of a statement of facts, that it was a jury question which the court could not decide in rendering the verdict.
It follows that the judgment of the lower court should be reversed and the cause remanded for a new trial, and it is accordingly so ordered.
Reversed and remanded.