Sabine & East Texas R'y Co. v. Johnson , 65 Tex. 389 ( 1886 )

Robertson, Associate Justice.

The measure of damages for negligently deluging the land of another, without permanently taking it, is the value of products, including fruit trees, destroyed and the injury done to the land, and not the difference between the value of the land before and after the overflow. R’y Co. v. Harrington, 62 Tex. 597 and R’y. Co. v. Helsley, 62 Tex. 593.

This rule entitled the appellee to recover the value of his grass submerged, but not the price of new pastures, or the expense of driving his cattle to them. His failure to claim what he was entitled to, gave him no equity to have applied a rule of compensation not authorized by law. But it is plain from his averment that the removal of his cattle and the lease of other grazing was not the result of flooding the appellee’s land. He alleges that his cattle ranged upon several leagues of land in his vicinity, and, recognizing that the flooding of these leagues would give him no cause of action, unless he had some right in or upon them, of which he was deprived, he avers that he had the right to graze these lands, by the consent of the owners, express or implied, and also that he had acquired such right by prescription. A mere license to graze, would not confer such right in the lands as would pass to the appellee any part of the owner’s right to recover for all damages done to the league. Certainly no more than a license is averred, and even less is proved. There is, if possible, still less of substance in the averment of the acquisition of a grazing privilege by prescription. Since the fence law of 1840, the owner of unenclosed land has no right of action for the intrusion of stock upon it. The owner has constructive possession of his land and that possession continues until there is actual disseizin by adverse occupancy or use. The grazing of cattle which strolled upon it is not such use. Whitehead v. Foley, 28 Tex.. The appellee had no right to graze his cattle on these leagues, but in doing so was guilty of no actionable wrong. In allowing his stock to range on these lands, he asserted no right in the lands and acquired none. The appellee sustained no injury, because he was deprived of no right in the flooding of these lands, and hence, was not entitled to recover the expense of removing his stock or the price paid for other pastures.

The obstruction of the highway caused appellee such special damage as entitled him to an action. Cooley on Torts, p. 614. His children could not walk to school for two months. This compelled them to stay at home or get there by some other means than on foot. If they stayed at home, appellee lost their proportion of the school fund for two months. This sum he was entitled to recover, unless he could obviate its loss by the expenditure of the same or a less amount. If his children’s share of the school fund was less than the value of the horse-feed, the share was the measure of compensation; if it was greater, then the value of the horse-feed. The value of the use of appellee’s own horses was properly excluded from the computation. It does not appear that the use was damaging, or that they would fare worse on corn than on grass, particularly in the then condition of the grass in appellant’s vicinity. The horse which died for want of the grass is not shown to have been one of those that got the corn. The appellee has also assigned errors, which, with a view to another trial, require consideration.

The demand for damages, on account of the poor condition of appellee’s stock, and the death of some of them for want of grass not belonging to appellee, was properly disallowed. As before stated, the full measure of compensation for his own grass destroyed is its value. The value of milk, which appellee’s cows would have given if they could have grazed on other people’s lands, flooded by appellant’s negligence, is too remote to be considered. But, if the overflow, without the intervention of other agencies, was directly and proximately the cause of the drowning of any of appellee’s stock, he was entitled to recover their value, whether the animals drowned were on appellee’s land or not. Moak’s Underhill on Torts, pp. 287, 288.

Other points reserved by appellee have been incidentally disposed of, and we think enough has been said to enable the parties, by another trial, to secure the ends of justice. The judgment is reversed and the cause remanded.

Bevebsed and Bemanded.

[Opinion delivered January 29, 1886.]