Texas & Pacific R'y Co. v. Saunders, 4 Willson 528

Texas & Pacific R'y Co. v. Saunders

4 Willson 528 | Tex. App. | 1892

Opinion by

White, P. J.

§ 304. Damages to growing crops; one of joint owners cannot recover beyond Ms oivn interest. This suit was instituted by P. W. Saunders against the railroad company for damages to a crop of corn and cotton, occasioned by two overflows,— one in the year 1888, and the other in the year 1889,- — which overflows were caused by the agents of appellant having carelessly, negligently and unskilfully, in making repairs of their road, obstructed the flow of the water in White Rock creek, diverting the same from its natural course, and causing it from time to time to overflow and submerge his land. Plaintiff prayed for damages in the sum of $995. At the trial the verdict and judgment were in favor of plaintiff for $600.12, besides the costs of suit. It is shown by the evidence that the crops destroyed were crops that were being cultivated and raised by the tenants of appellee, Saunders, and not by Saunders himself; and that Saunders was only to get one-third of the corn and one-fourth of the cotton raised, the balance being the property of the tenants. These facts were testified to by appellee, Saunders, himself, who was a witness in his own behalf. Upon this state of facts, appellant, who was defendant in the court below, asked the court to instruct the jury *529as follows, by his special charge No. 3, to wit: “ I further charge you that, as the undisputed evidence shows that plaintiff owned at most only one-third interest in the corn and one-fourth interest in the cotton growing on the land at the date of its alleged overflow and damage by -water, the remainder of said crops being owned by tenants, plaintiff is not entitled to recover for any damages to said crops beyond such interest, and is entitled in no event to recover for the interest therein belonging to sa-id tenants.” We are of opinion that the court erred in refusing to give this instruction, and for this error the judgment is reversed and the cause remanded.

March 19, 1892.

Reversed and remanded.