Fort Worth & Denver City R'y Co. v. Scott , 2 Wilson 137 ( 1884 )

Opinion by

Willson, J.

-§ 110. Surface ivater; injury by, when a cause of action. If, by reason of the construction of a railroad bed and ditches, surface water be diverted from its usual and ordinary course, and by means of embankments and ditches is conveyed to any particular place, and thereby overflows land which, before the construction of the road, did not overflow, the company will be liable to the land owner for such injury. This rule applies as well where the company has the right of way over the land as where it is a trespasser or possessor without right. [R’y Co. v. Donahoo, 59 Tex. 128.]

§ 111. Same; when not a cause of action. In the case of the flow of mere surface water, where there were ne channels through which it usually passed off, damages occasioned by its obstruction would not be recoverable. [W. & W. Con. Rep. § 417.]

§ 112. Nuisance; when liability for, exists. If the act of the defendant contributes essentially to the creation of the nuisance, as by the erection of a dam which renders-the water stagnant, or produces its overflow, so as to-cause it to gather in pools or eddies and become stagnant, or by raising it, so as to cause the decay of vegetable-matter upon its banks, whereby unwholesome gases are developed, he is liable, even though natural causes combine with his act to produce the result. [Wood on Nuisance, § 820.]

§ 113. Charge of the court as to measure of damage. The market value of property destroyed or injured, in an action to recover damages for such destruction or injury, is the proper measure of damages; and the charge of the court should so instruct the jury. In this case, while the charge of the court in this respect was objectionable, it was held error for which the judgment would not be reversed, because, under the evidence in the case, it was immaterial. [W. & W. Con. Rep. § 250; R. R. Co. v. Knapp, 51 Tex. 592.]

April 16, 1884.

§ 144. Damage to growing crops is damage to the land. Damage to a crop growing upon land is damage to the land, and it is proper, in estimating damage done to land, to take into consideration the damage done to the crops growing thereon. [W. & W. Con. Rep. § 232.]

§ 145. Not error to refuse charge requested, when. Where the charge of the court is full and fair upon all the issues, it is not error to refuse additional instructions. [W. & W. Con. Rep. § 1133.]

Affirmed.