*1 653 By. Co. v. Boss. & Pacific Texas 18H.~\ met and not allowed Constitution, was void. He is survey 1 Niswanger Saunders, Wall., v. already surveyed. land locate on of the Supreme Court United of other cases 424. In a number patent by patents or covered location lands States has held, first or any standing, although patents sur without surveys 1 13 Galloway Finley, v. v. Clark, 638; Jackson vey may Pet., be void. 270; v. 7 Land Dun’s Association Heirs, How., McArthur Pet., 298; All have except 142 of these cases last been Knight, 161. S.,U. 69 Supreme our Court. Winsor v. O’Connor, cited approved of the irregularity alone can complain 571. The State the statute land, nothing declaring survey of the had it intro proof,, reason of survey irregularities. void nothing to render merely discrepancies, would have shown duced, Day The it In 68 survey State, Texas, 525, void. the case did constitute a void titles not was held that land covered location, and that such lands within the public open domain survey were “lands titled.” The of this of the Constitution meaning an authority and, under of Act ad Legislature; land was made in the from still it was surveyed grant Mexico, mit it not that was virtue of surveyed in no than it had been a valid position worse survey and the was for some reason void. In the latter case certificate we see it subject why it can no reason location, would not be by appellant We are cited to the case of should be the former. Knight, California, Land Association v. which tends ssutain 448, Supreme appealed his Court of the position, but case was position now reversed, United States and was there taken opinion. in that Land Association v. Knight, this court is sustained 161. S.,U. that there is no error We are judgment, isit affirmed. Affirmed. 1894.
Delivered June Justice, not did sit this case. FTeill, H. Company G. Ross. Texas & Pacific No. 368. Railway—Negligence—Fire.—Appellant from is not relieved track, from which permitting to accumnlate bark other inflammable matter property, by reason the fact that appellee’s fire was communicated fire. latest kept in re- Same—Lessee.—Appellant, as lessee of the permitting lessor, fire to pair by is not excused from track. known, inflammable material knew, track, when could Appeals Beports. Texas Civil \_4tl1 Charge.—A charge, allowing to remain *2 contributory guilty negligence track, placing whether was of in track, questions jury his wood for evi- near the were to determine from all the case, dence was correct.
ON FOE MOTION BEHEABING. Contributory appellee Negligence.—The neg- guilty contributory 4. was not of ligence placing track, his wood near the railroad where it covered with inflam- point placed prepared at a material, by if he on or mable wood near the track railway loading only place wood, for and it the wood could unloaded shipment. negligence by for railroad can not screen itself from result of The appellee placed fact knew the had condition track before he his wood near it. El Paso. Tried Appeal M. below before Hon. A. Walthall, Special Judge. appellant. Edwards & for Edwards, Patterson, appellee.
Millard for Appellee recovered FLY, judgment Justice. against lower for aon claim for court, appellant, $1800, $1753.65, accrued alleged appellant fire setting 600 destroying to and cords of placed had been near the shipment. for railroad
Appellant pleaded contributory negligence part of appellee wood placing his so near the track that it was ignited; upon which the fire occurred was not owned but appellant, Galveston, Bailway San Antonio Company. & The jury. before a The verdict included the case was tried interest on the of the wood the time its destruction time of value trial. following We find the facts: March, appellee placed green
1. In 600 cords near in El County, city the track of the railroad Paso between the of El Paso between and Sierra Blanca. Sierra Blanca and El Paso operated jointly by appellant and Harrisburg & San placed and the wood Bailway Company, Antonio had been near the position where it was shipped, customary shipment. The fire was communicated wood means of the ignition dry appellant material which knew had and combustible accumu- endangered lated on and the surrounding property. which was left on negligently
3. The the right ignited by sparks run from an over engine cords of operated by appellant, 600 wood be- belonging By. 655 Texas & Co. Boss. Pacific v. i894.:\ $2.75 per destroyed by cord, the value longing appellee, appellant. the carelessness ignited by the wood was circumstances that Appellee showed of proof and the burden engine belonging from an did not occur reason of upon show appliances. It account of defective showed negligence on its spark arrester, the latest best using this case that prima this, first done facie class, having 69 Railway Texas, was rebutted. appellee Benson, case complaint assignment is made the first is a charge of which held in the Benson presentation case, as well as good law, Railway Texas, others. Horne, 643; Timmermann, Railway v. Hogsett, Texas, 660; *3 assignment hypercritical,
The second of error is and without merit. occurred, fire and petition The at the time charges, “that said at the defendant, the the said whose it was occurred, same keep right way to free combustible allowed the materials, it did and right way operated over which business its cars said to with very dry bark, trash, become much encumbered and chips, sticks, quantities to handling large other combustible matter incident sparks to catching igniting dry and said and and said conveyed wood of and plaintiff, bustible said matter, consequently quali- destroyed court, same was as aforesaid.” The in which find for fying jury instructed that charge you find that at said time and farther, said: “Unless place the or the over whose line defendant company, operating then and there and had engines cars, matter on its permitted right an accumulation of ignitible, fire, and that said combustible caused said near complained that where said wood was burned.” It is this jury instructs to find appellee, because erroneous, fire was communicated to not. whether the the combustible language complained taken, jury In the from which the of is clause ap- sparks times reminded must have come are several pellant’s jury we would forced to conclude that engine; ordinary not men of even could have intelligence they charge. misled of the after as follows: charge stating issues, court, to proof plaintiff
“1. That the burden of this case is estab- You by preponderance of action of evidence. are the lish his cause proved, given of the to be judges weight facts exclusive applicable you to this case take from this testimony. law will thereby. governed and be charge, “ permitted bylaw run companies are authorized and 2. Bailroad propelled by their steam upon generated by fire, tracks, their trains Appeals Repoets. Texas Civil \Jfih they are authorized to use all reasonable means which enable carry purpose they They out the for which were created. are them their and are not to use be .restricted furnaces, permitted sparks or held to of fire operation liability their because engines. They required keep emitted from their are their engines operate order, carefully skillfully and to handle and good them, appliances expe- order as the keep good and to use and such other best, practical among railroad men determine are rience way right of combustible material their prevent the accumulation operation They in the of their trains. them or the pre- If invented to required to do more. no are are not time sparks and at "the same allow suffi- fire, vent the they their then properly propel generated trains, cient steam among the required appliances as are considered only to use such experts. best plaintiff’s destroyed, alleged, find wood was you you will company’s engine, from defendant
sparks and fire emitted at the reasonable market find for and assess his plaintiff, in- with destroyed place, legal at the time and value of the so you further present from that date to the unless time; terest skillfully repair fire, good at the time engine, appli- with competent supplied employes, handled practical railroad men to among the best ances considered appliances were in good and that said fire, *4 of did not employes negli- and defendant and that the servants order, you if you find, of fire and so permit therefrom; gently although may believe that the fire was you defendant, for the operated by company; from the the defendant engine caused place that at said time and further you find, unless over whose line defendant was then or the railroad pany, permitted an accumu- negligently and had engines cars, operating on its of and and combustible material of ignitible lation place at and near the material caused said fire combustible that said wood was so burned. plaintiff’s where per- from the evidence that defendant
“If you believe of right way on its the accumulation mitted plaintiff wood was plaintiff’s placed, at at the time it where it was situated wood to be his said caused further you believe, burned, you say if and burned, was surrounding attending circumstances the conditions and all reasonably it have been time, might there at the of the wood placing care and prudence, in exercise of reasonable a man anticipated, oper- when engines on fire defendant’s likely to be set that it was approved with the most supplied when manner and proper in a ated and when fire, appliances spark arresters By. Co. Boss. Texas & Pacific 1894-1 prudent in being operated a engines and other plaintiff or if from the evidence you careful believe manner; in his wood where it was at guilty contributory leaving negligence might it that he you say burned, the time it burned, likely on fire de- reasonably anticipated that was set operated supplied explained, fendant’s when as above engines may you although you then should find for the believe defendant, negligence have been caused evidence that said employes. of defendant’s agents part in question
“The on the of defendant this caséis in you one of fact for to determine from all the evidence this case. So question contributory part with plaintiff, questions and in are to look to determining you charged these all the evidence this case. you you should find for the plaintiff, charged that the meas- question
ure of is market the reasonable value the wood at time with legal interest from that date to fire, this date.” whole, open
This when taken as a is not to the charge, criticisms passed upon and there is no invasion of it, province of the jury; and the jury question were instructed that the of negligence on the appellant was one of fact to be determined from all the evi proof dence the case. The case conflicting this to the regard control of the road El between Paso and Sierra where the Blanca, Appellee damage operated was done. Boss that it swears A. C. jointly. two railroads witness for Wheeler, testi fied, & San Antonio Bailway Company keeping had the the track and right way repair. Whether with charged keeping repair we are not, proper that there was a lack of care and caution in run ning matter, over track covered as this was with combustible of this want of due care and caution appellant’s reason' liability fact of the would attach. The accumulation of combustible material proximity and near the track and close open visible, appellant by the of any exercise caution could have ascer with degree tained the defect. While some of force and rea *5 company that a railroad argued running son be trains over a leased responsible for any track would not be defect the track that un known by known or could not have been the exercise of still the care, would proposition of this be true. the danger might converse care, the exercise of due have been discovered defendant will whether the defect was original be construction liable, failure on or was due to a of the lessor make neces road may or however otherwise it have been sary caused.” Little repairs, E. Rep. 29 N. the numerous au- john Railway, (Mass.), 103, VII. Civil—42. Vol. Appeals Reports. [4'i/t Texas Civil permitted of a be cited. The lessee not
thorities therein consequences plea own that it its is it in- keep order. When proper of the lessor to exercising or not due care destroys person, property, by jures life, whether the road caution, responsible, belongs it will be held taken. assignments it or Rone of the are well not. is affirmed. judgment Affirmed. Delivered 6, June MOTION REHEARING. ON FOB The fire which the wood was de- Justice. FLT, Associate railway line of between Sierra Blanca El stroyed occurred & San Railway owned Antonio Paso, companies. Appellant is the two jointly by neg- Company, place put fire to the wood at the where was for set ligently shipment, of some secret ground understanding and can not shield itself have had with & San Antonio Galveston, Harrisburg spur Company. placed or switch had been Railway shipped. place This was designated order that placed for wood to be for company the railroad shipment, shipment for prepared no other shown have been put ship had to his wood there or not he can Appellee it, wood. of his precluded recovery from the a failure not be no if proper company condition, track wood in where he knew there was inflammable put did his he neg- can not itself from the result material. The railroad screen knew of condition of appellee the fact that the bad ligence Railway he his wood near it. Trawick, before Dessommes, whatever the case nothing There is 806, with our antagonism decision. Reporter, Southwestern proved in rail affirmatively the Dessommes case that the It was did not own and had no connection whatever with that was sued pany on which the accident Of it was not re- occurred. course crossing had not using track between Sierra sponsible; and responsible. the owner it would just and El Paso like not be did, Blanca our to the law change facts, We see no reason overruled. rehearing and to additional facts are the motions overruled. Motion Delivered October A writ error was refused. Justice, did not sit this cause.
Heill,