T. & N. O. R. R. Co. v. Sutor

West, Associate Justice. — This case will be found reported in 56 Tex., 496. On the former trial there was a verdict for appellee for ($810.65) eight hundred and ten and AiV dollars. Among the items, enumerated as part of this sum, was the value of the use and occupation of the land and interest on that amount. This court then held that the appellee had voluntarily consented to the occupancy of the land in suit by appellant without compensation to himself other than the benefit that would accrue to him in common with all property owners in the city from the completion of the road. This act of his was, in effect, the court say, an estoppel in pais, or some kind of partial dedication of the land for the public use contemplated. The appellee, this court held, Avould not, under such circumstances, especially after the lapse of about seventeen years, be allowed damages against the appellant for the use of land that he had, without charge, voluntarily allowed it to use. There ivas a new trial below, and the case is again before us with an increased verdict for ($1,000) one thousand dollars, with interest at eight per cent, per annum. This amount includes again the value of the right of way, and the court in its judgment proceeds to condemn the same for the use of the company. The facts on the present trial as to appellee’s consent to appellant’s having the right of way did not differ materially from what they were on the former trial. The fact that the appellant failed to construct, repair and keep open the necessary ditches that it ought to have kept open, would not operate a forfeiture of the right of way that the appellee had previously voluntarily relinquished. The appellee not being entitled to recover the value of the use of the land under the facts found, as heretofore decided, the judgment must be now reversed, because the jury have again allowed damages in that behalf. But there is some evidence tending to show that appellant has caused actual damage to the premises and property of the appellee by negligently causing or allowing his property to be overflowed. Appellee is justly entitled to compensation for such actual loss, injury and damage as he can satisfy a jury by proof he has suffered by reason of the negligent or tortious acts of appellant in this matter. The case is reversed, so that the appellee may have an opportunity of a full inquiry into [32] that matter without that subject being complicated, as it has heretofore been, with the* question as to the value of „the use of appellee’s land for the purpose of operating appellant’s road. The judgment is reversed and the cause remanded. BeVERSED AND DEMANDED. [Opinion delivered February 23, 1883.]