Houston, East & W. Tex. R'y Co. v. Adams

Stayton, Associate Justice. The petition must be taken as an entirety in determining whether the demurrers were, properly overruled. . . • — 205 — The petition denies that the right of way through the land of appellees was ever acquired by the appellant, and this became an issue in the case; and we may now say, without further considering it, that in view of this issue the court did not err in admitting such evidence of damage to the entire tract of land as would have been admissible had the proceeding been one to condemn the land through a procedure provided by the statute. The charge of the court correctly submitted the law on such an issue to the jury, and their finding, fully supported by the evidence, was in favor of the appellant, and this renders it unnecessary to further notice that branch of the case; for the appellees took nothing under it. The averments in reference to the damage resulting from injury to an oat crop, orchard, pasture and the destruction of fences relate evidently to injuries which resulted from the tearing down of the fences of the appellees at the time the railway company entered the land, and from the failure of the appellant so to fence and guard its way where it entered and left the premises of the appellees that animals could not enter through it and destroy the property of appellees. These averments were proper, made with reasonable certainty, and sought as damage the value only of the property or right at the time of its destruction. The petition, having alleged that the appellant was a naked trespasser for the years 1882 and 1883, sought to recover damages on the ground that by reason of the wrongful possession of the land appellees had been prevented from making crops on the lands during the years named. The averments in relation to these matters were of a general nature, but considered altogether were sufficient to show that the appellees would be entitled to the mesne profits of the land while in the possession of the appellant, which would embrace the annual rental value of the land so illegally held, together with any injury resulting from the destruction of fences or other things, but would not embrace the real or supposed value of crops which might have been raised on the lands during those years by the appellees but for the alleged wrongful possession by the appellant. This branch of the case, however, in view of the fact that the appellant had the right of way over the land, becomes of but little importance, except in so far as it may appear that some part of the land of the appellees was held by the appellant without right. In addition to the issue presented by the pleadings, as already — 206 — stated, an issue was raised whether, conceding that appellant was entitled to the right of way through the land of appellees, that right had been carefully used. It was alleged that it had not; and that, by the negligent construction of the road, and failure to erect cattle-guards, and keep them in order where the railway entered and left the inclosed premises of appellees, his field had been left open to stock, whereby he was prevented from using it. The petition further claimed that the appellant, for depot and like purposes, outside of the right of way, and without the consent of the appellees, had, on the land of appellees, erected houses which without their consent the appellant had removed since the institution of this suit. The value of these were stated and proved. Much of the confusion in this case arises from the several issues presented, in reference to one of which evidence would be admissible which would not be on another. The court below, as should be done in such cases, separated the several issues presented, and informed the jury as to the rights of the parties under each, and as to the facts necessary to maintain the one and the other. If the evidence offered was admissible on any issue presented, it would have been error to have excluded it because not admissible on all the issues. The matters assigned as error in the first, second, third and fourth assignments relate to the admission of evidence. The grounds on which the questions and answers referred to in the bills of exceptions and assignments were objected to are not made to appear in the bills of exceptions, and if admissible for any purpose, on any issue in the case, the action of the court below will not be revised, however objectionable the manner of interrogating the witnesses may have been. The questions addressed to the witness Adams were intended to and did elicit answers which were admissible on the first and second issues in so far as the matters to which the answers related were concerned; while in the manner of statement, substituting to some extent the opinion of the witness for a statement of facts from which the jury could draw their own inferences, the answers may have been subject to objection. , The bills of exception not showing that the questions and answers were objected to on the ground of the manner in which the questions were asked and the answers given, the matter of the answers being admissible, the ruling of the court below in this respect will not be revised. The same may be said as to the ruling of the court in regard to the question propounded to the witness Jones. — 207 — There was evidence tending to show that up to the time of the trial the appellant had not so secured its way at its entrance to and exit from the field of appellees as to prevent the passage of stock into the field; and from the verdict the jury must have believed this to be true. It is, however, claimed that if this be true, then the appellees are not entitled to recover, for the reason that they might have erected fences through the field on each side of the right of way and thus have avoided loss. The duty of a party to protect himself from the injurious consequences of the wrongful act of another, when it can be done by ordinary effort or moderate expense, is fully recognized, but it is by no means easy in every case to determine when the rule is applicable. Under the statutes in force in this state, it is the duty of a railway company “ whose railway passes through a field or inclosure . . . to place a good and sufficient cattle-guard or stop at the points of entering such field or inclosure, and keep them in repair.” R. S., 4240. The statute further declares that, “ Should any such company neglect to construct the proper cattle-guards and stops and keep the same in repair as required by law, such company shall be liable to the party injured by such neglect for all damages that may result from such neglect, to be recovered by suit in any court having jurisdiction.” R. S., 4244. The permission given to the land-owner through whose inclosed land a railway runs, to enter upon the way and construct cattle-guards and stops in cases in which the railway company has failed to do so, and the obligation which flows from this permission, was considered in the case of T. & S. L. R’y Co. v. Young, 60 Tex., 201, and it was there held that the land-owner was not compelled to exercise this permissive right or otherwise be considered as guilty of contributory negligence. We are of the same opinion now. If the owner cannot be required to erect or repair cattle-guards or stops, which include such barriers as extend across the entire width of the right of way, at places of entrance, can he be compelled, when the railway company fails to erect proper cattle-guards or stops, to build fences at the outside of the right of way on both sides of a railway through his entire inclosure, or otherwise be denied a recovery for an injury which would not result but for the failure of a railway company to discharge a plain statutory duty? — 208 — We are of the opinion not; partly on other grounds than those referred to in the case above cited. When a railway seeks the right of way through inclosed lands, through condemnation, the cost of such fences as will necessarily have to be built to enable the owner to use his land after the railway is built will be taken into consideration in estimating the damage ; but when fences will not have to be built and the land will be fully inclosed without additional fences, if the right of way at entrances be fenced, then this does not enter into the estimate, but the law makes it the duty of the railway company to keep this part of the inclosure safe, and on this the owner of the land does and may rely. In cases in which the right of way is acquired by agreement, with or without compensation paid, other than such benefits as may result from the construction and operation of the road, the same things may be supposed to influence the parties and to form the consideration to the contract as may be taken into consideration by a jury or board in estimating damages. In either case the parties rely upon a compliance by the railway company with the plain provisions of law, which, in the one case as in the other, will render unnecessary, for the protection of the land-owner, the erection of fences on each side of the way through the entire inclosure. The parties contract in view of an implied promise on the part of the railway company that it will do what the law requires it to do, and not in expectation that the railway will violate its duty. That the land-owner might recover the cost of erecting the necessary fences is no answer to the breach of contract by which the railway promised to render the erection of such fences unnecessary. ■ In case of a railway running through a field, by the erection of fences on each side of the way, separating one part of a farm from another, an inconvenience and injury may arise to the land-owner which was never anticipated at the time the right of way was obtained ; and thus a burden be imposed which would not exist did the railway simply perform its duty, raised by contract and imposed by statute. If the land-owner understood that such fences would have to be erected, then in granting the right of way by agreement, he would take into consideration all the inconveniences to arise and injuries to result from the severance of his farm, not only by the roadway, over which he may ordinarily pass so that he does not interfere with the right of the railway in some respect to safely use it, but also the severance which is to result from the erection of two fences, and — 209 — he would require such additional compensation as would compensate him for the inconvenience or injury thus increased. We are therefore of the opinion that as a condition to his right to recover, in cases of injury resulting from the failure of a railway company to place and retain secure cattle-guards and stops at its places of entrance into inclosed lands, the land-owner is not compelled to erect fences on the sides of a right of way, even though this might be done at the expense of the railway company. It only remains to inquire whether the verdict and judgment are so clearly excessive as to require the judgment to be set aside. The judgment is for $1,000. There was evidence tending to show the following items of injury : Oat crop destroyed, $200; orchard destroyed, $300; loss of pasture, $75; rails destroyed, $22.50; rent of land $400. This last item, however, embraces the year 1881, and damage for the destruction of crops and other injuries resulting in that year are embraced in the preceding items; therefore, this entire item could not be allowed. There is evidence tending to show that the appellant took possession of and used land belonging to the appellees, outside of the strip embracing the right of way; and there is evidence tending to show that on this land a house and other improvements were made without the consent of the appellees, and that, pending the suit, a house of the value of about $425 was removed without the consent of the land-owner. For this, damage was sought under the averments of the supplemental petition, which, if found to be true, would entitle the appellees to a judgment for the value of the house made a part of the realty by a trespasser, and subsequently removed without the consent of the owner. Considering all the items which the jury could properly take into consideration in estimating the damage, it cannot be said that the verdict is excessive, and the judgment is affirmed. Affirmed. [Opinion delivered February 6, 1885.]