86 S.W. 659 | Tex. App. | 1905
M. A. Brown and T. P. Harris, as joint owners of a lot of land situated in Dublin, Erath County, sued the Texas Central Railroad Company for damages for permanent injury to said land, growing out of the negligent construction of a railroad embankment containing insufficient culverts to accommodate the flow of surface water, by reason of which facts plaintiffs' land had been overflowed, and its value materially lessened. The petition contained an allegation that Brown had sold all his interest in the land to his coplaintiff prior to the suit but subsequent to the injury. The defendant answered by general denial, and specially, that if the property had been overflowed it was caused by the city of Dublin, and by exceptions and other special answers not necessary here to notice. There was a trial before a jury resulting in a verdict in favor of plaintiffs in the sum of $600, upon which judgment was entered, and the defendant has appealed.
The first, second and third assignments are not well taken because, if it were true that appellee Brown, by reason of the sale of the property to his coplaintiff Harris prior to the institution of the suit, is precluded from recovering for the damages to the property while owned by him and his coplaintiff, it would also be true that the grantee may recover all the damages in this action, and the appellant therefore has no just cause of complaint. But we can not agree that appellant presents a correct proposition of law when it urges that by reason of this fact appellee Brown himself can not recover for the permanent injuries done to the realty while owned by him. On the contrary, we think the law is that in such case the party entitled to damages is the one who owned and was in possession of the land when the injury was done, and not a subsequent purchaser. Galveston, H. S. A. R. R. Co. v. Pfeuffer,
By the witness Ables the appellant sought to prove that in 1900, and immediately prior to the erection of said dump and switch, appellees' property was worth $600 or $700, and that as that sum was its reasonable market value at that time, and immediately after the construction of the dump and switch and at all times since, the reasonable market value of the property had not been depreciated. This testimony was excluded upon the objection of appellees, and upon its exclusion appellant assigns error.
From the character of the interrogatories propounded to appellees' witnesses, and from the explanations attached to the bills of exception by the court, when considered in connection with the charge given, it is apparent that the court considered the measure of appellees' damages to be the difference in the market value of their property immediately before and immediately after the floods of 1900 and 1902, which overflowed them. But since the parties have treated appellant's structures as permanent, and the injuries thereby inflicted upon appellees' land as constant, and not merely recurring at long intervals, we think the case is ruled by the principles announced by our Supreme Court *612
in Rosenthal v. Texas, B. H. Ry. Co.,
In view of another trial we call attention to the probable error in admitting evidence as to the market value of the land before and after the floods occurring in 1900 and 1902, some of which were nearly two years after the construction of appellant's embankment. If the nuisance is a constant or continuing one, the test is the diminished value at the inception of such nuisance and not at a date two years later when in all probability the market value of the land is quite different.
We do not pass upon the sufficiency of the evidence to support appellees' *613
contention that the nuisance is permanent and not merely one recurring at long intervals, in which latter event a different rule for measuring the damages necessarily applies. Gulf, C.
S. F. Ry. Co. v. Helsley,
Justice Stephens concurs in the reversal for the error discussed, but does not assent to all the propositions announced.
Reversed and remanded.
