60 Tex. 215 | Tex. | 1883
The only question for our decision in this case is; What is the measure of damages in an action brought by the owner of land against a railroad company for taking possession of a portion of his land without his consent and constructing a railroad through it!
Our statute, in cases where land is condemned under it, provides that the commissioners shall estimate the injuries sustained and the benefits received by the owner as to the remaining portion of the real estate, and the extent of such increase or diminution, and shall assess the damages accordingly. R. S., art. 4195. This is legislative construction as to what amounts to a compensation to the owner for landed property taken for public use. Is lie entitled to any more
This is the rule which should determine the amount of the plaintiff’s recovery in this case, if he recovers at all, provided he makes no proof of special damages, or lays a basis for such as are exemplary.
In estimating the value of his property, no separate account should be taken of the trees cut from the land, but the value of the land taken with the trees growing on it should he assessed» They are part of the realty and should not be separated from it in arriving at the value of the land. The jury, under the charge of the court, did thus value the trees separate from the land, which is apparent from their verdict, and hence their finding was excessive and not in accordance with the evidence before them, and so was the judgment even after remittitur entered. The judgment is therefore reversed, and the cause remanded for a new trial in accordance with the law as laid down in this opinion»
Reversed and remanded.
[Opinion delivered October 26, 1883.]