The Stephenville, North South Texas Railway Company instituted proceedings to condemn for right-of-way purposes certain land belonging to Mrs. S. R. Moore and others, and from a judgment in favor of the owners of the land the railway company has appealed.

The admission of the testimony of the witness Johnson Thomas, to the effect that the rent house situated near the right of way has burned since the railroad was put in operation, we think was error, which was calculated to be prejudicial to the defendant, and for this error the judgment must be reversed. *Page 555

Appellant complains of the admission of testimony as to the market value of the land taken at the time its railroad was built over it, rather than at the date of trial. The basis of this assignment is the proposition that prior to the trial it made no deposit of the amount of damages assessed by the commissioners appointed by the county judge, that therefore there was no legal taking of the land prior to the trial, and that the proper measure of damages should be the value of the land at the date of the trial. We are inclined to hold that in any event the correct measure of damages would be the value of the land at the time appellant constructed its road upon it. In the case of Morris v. Coleman Co., 28 S.W. 381, cited by appellant, the Commissioners' Court had ordered a public road opened across certain land, and it was held that the market value of the land at the date of the trial was the proper measure of the owner's damages, in view of the fact that there had been no previous deposit of the amount awarded by commissioners appointed for that purpose, and therefore the date of the trial was the date the land was taken. But in that case it does not appear that the road had been opened on the land prior to the trial. However, at all events there was no error in admitting the evidence complained of herein in view of the fact that the record does not show that appellant had failed prior to the trial to make the deposit of the damages previously assessed, and in view of the agreement by the parties upon the trial that defendant had taken all necessary steps for the condemnation of the land.

No injury is shown to appellant by the action of the trial court in refusing to allow its counsel a longer time than was given to examine witnesses, and therefore the fourth assignment of error is overruled.

For the error above indicated the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.