Couch v. T. P. Ry. Co. , 99 Tex. 464 ( 1906 )

We adopt the statement of the Court of Civil Appeals as follows:

"This suit was brought by John Couch against the Texas Pacific Railway Company and the city of Baird, to recover damages in the sum of $15,000 for the alleged conversion of water from a well averred to be on appellant's premises.

"Upon hearing the evidence, the court peremptorily instructed a verdict for appellees. Couch has appealed from the judgment entered on the verdict.

"These are the facts: The right of way of the railway company runs through the northwest quarter of section 90, B.B. C.R.R. land, on practically a straight line. The company constructed its road over the land in 1879 and 1880, when it was public school land, and it had the right of way thereover by virtue of article 4167, Revised Statutes of 1879, for its road.

"The quarter section in controversy was first filed on by F.D. Merchant, plaintiff's assignor, on the 3d of January, 1881, and was patented to plaintiff as assignee on the 7th of February, 1902.

"The well in controversy was dug by the railway company on the quarter section, and is located on the north side of its railroad track and on its right of way.

"On the 6th day of March, 1889, Couch sold and conveyed to Norton McGowen, the following described portion of said land:

"A portion of n. west 1/4 of section ninety (90) B.B.B. C.R.R. Co., about 2 1/2 miles west of Baird, commencing at n.e. corner of the n.w. 1/4 of said section ninety (90) stake and stone mound from which a p.o. 10 brs. s. 62 1/2, west 217 vrs., marked R; do 10 brs. n. 77, w. 38 1/2 vrs., marked X; thence west 950 vrs. to s.e. corner No. eighty (80) B.B.B. C. Ry. Co., land, stone and mound for corner, from which a black jack 8" brs. s., 28 e. 21 vrs. mk'd n.w. 90, a p.o. 19 brs. n. 83 w., 80 vrs. mk'd RR; thence south about 190 vrs. to right of way of the Texas Pacific Railway; then east with said Texas Pacific Railway right of way about 950 vrs. to corner; thence north about 110 vrs. to stake and stone mound from which a p.o. 10" brs. s. 62 1/2, w. 217 vrs. mk'd R., p.o. 10" brs. n. 77, w. 38 1/2 vrs. marked X, to place of beginning containing forty (40) acres, more or less.

"The county surveyor of Callahan County testified as follows: Beginning at the northwest corner of section 90, and running south 190 varas, will carry you to Texas Pacific railroad track; this corresponds with the field notes in the plaintiff's patent to the land. . . . On the east side between the two quarters I went to the center of the track; this I think was 110 varas; the deed called for forty acres, more or less; upon making the calculation I find that the field notes figure out only 25, 25-100 acres of land."

The right of way of a railroad is not a public highway in the sense of a public road or street, and the rule of construction which applies to a deed for land bounded by a public highway does not apply in this case so as to make the deed convey land not included in its terms. At the time the deed from Couch to Norton McGowen was made, Couch owned the land on both sides of the railroad, and after the sale the entire right of way remained in connection with his land south of the railroad. Under this state of facts there is no ground for a presumption that Couch intended to convey that portion which lay between the line described in the deed and the railroad track.

There is a conflict between the call in the deed for the distance 190 varas and the call for the right of way. Unexplained the call for the right of way must be treated as if it had been a call for another tract of land and will control the call for distance. Upon the face of the deed the land conveyed extends only to the north line of the right of way, but the conflict between the call for distance and the call for the right of way may be explained so as to show the real intention of the parties; and if it shall appear that it was intended to convey the land to the railroad track, then the call for distance should be enforced, otherwise the deed should be limited to the north line of the right of way. Wyatt v. Foster, 79 Tex. 420.

The railroad company insists that there is no evidence to charge it with participation in the appropriation of the water by the city of Baird, but we find in the record a contract between the railroad company and the city whereby the railroad company gives the city permission to take the water, requiring the city to indemnify it against all damages which might accrue by reason of the use of the wells by the city; also required said city to fence the wells so as to guard against damages to stock that might congregate around them, and to indemnify the railroad company against all damages arising from such cause. Under these facts we think that there was a cause of action against the railroad if the plaintiff shows himself entitled to recover for the appropriation of the water by the city.

The district court erred in instructing the jury to find a verdict for the defendants, and the Court of Civil Appeals erred in affirming the judgment of the district court, for which errors the judgments are reversed and the cause remanded.

Reversed and remanded.