ment of the Court of Civil Appeals be revers- [ that the trial court found that the nuisance ed, and that the cause be remanded for a was permanent, in view of Rev. St. 1911, art. new trial. 1985. PHILLIPS, C. P. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission of Appeals on the questions discussed in its opinion. TOWN OF JACKSONVILLE v. MCCRACKEN et ux. (No. 206-3290.)* Error to Court of Civil Appeals of Sixth Supreme Judicial District. Action by J. L. McCracken and wife against the Town of Jacksonville, to recover damages for a nuisance. A judgment for plaintiffs was modified by the Court of Civil Appeals (197 S. W. 309), and both parties bring error. Judgment of Court of Civil Appeals reversed, and judgment of the trial court affirmed. Lee G. Carter and Jno. C. Box, both of (Commission of Appeals of Texas, Section A. fendants in error. June 15, 1921.) 1. Appeal and error 362(1)-Supreme Court cannot consider fundamental error not presented in application for writ of error. On writ of error, the jurisdiction of the Supreme Court is limited by Rev. St. 1911, art. 1546, to the questions of law presented in the application, and it cannot review even fundamental errors which are not so presented. 2. Limitation of actions 55 (6)-Action for permanent injuries to land by operation. of septic tank did not accrue until consequential damages occurred. SPENCER, J. Plaintiffs, J. L. McCracken and wife, S. E. McCracken, filed this suit on December 2, 1915, against defendant, the town of Jacksonville, Tex., a municipal corporation, under the laws of this state, to recover damages alleged to have accrued by reason of the defendant maintaining a nuisance the operation of a septic tank-on land adjacent to a 29-acre tract of land owned and occupied by plaintiffs. Plaintiffs alleged that defendant erected and operated in connection with the sewerage system of the town a septic or disposal plant; that the outlet from this tank was discharged and emptied into a branch near their land and residence, which meandered through their premises and to within 75 Where the findings approved by the Court of Civil Appeals showed that the injury to plaintiff's land from a septic tank operated by a town resulted, not from the construction of the tank, but from the mode of operation, the statute of limitations did not begin to run against plaintiff's right to recover the deprecia-feet of their residence; that the matter cartion in the value of his land resuting from the nuisance at the time of the construction of the tank, but only when the consequential damages resulting from its operation occurred. 3. Nuisance 50 (2) - Depreciation in value of land recoverable for permanent nuisance. Where the injury to the land is only temporary, and the nuisance is capable of being abated, plaintiff can recover only depreciation in rental value or use of land which had occurred before the trial, but, if the nuisance is permanent and not subject to be abated, or if it is treated as permanent by the parties, the proper measure of damages is the depreciation in value of property. ried from the tank onto plaintiffs' premises polluted the air and scattered meningitis and other disease germs, contaminated the water in the branch, and made of their premises a breeding place for flies, mosquitoes, and other germ-carrying insects, and that as a result of these unwholesome conditions, their son Grady sickened and died, the health of plaintiff's family became impaired, causing loss of time to plaintiffs and the expenditure of money for medicine and medical attention, and that the continuation of this nuisance which is permanent, has permanently depreciated the value of their premises. On special issue submitted to it, the jury 4. Appeal and error 931 (4) Permanent found that the sickness of plaintiffs and nuisance presumed in support of judgment where no requests for submission of issue of permanence were made. their children and the death of their son Grady was caused from the operation and maintenance of the septic tank; that the erecWhere defendant in action for damages tion of the tank did not decrease the value caused by nuisance did not submit any charge of plaintiff's property, but that before the embodying a request for finding as to whether operation of the tank the value of the premthe nuisance was permanent or for finding of ises was $3,300, and that after the operadamages if the nuisance was temporary, and the question whether the nuisance was permanent tion of it the value was $1,500, due to the or temporary was a question of fact for the nuisance; that plaintiffs had paid $100 for jury, it must be presumed in support of judg- medicine and medical services; that the value ment allowing damages for permanent nuisance of the time lost by plaintiffs by reason of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied, October 19, 1921. (232 S.W.) sickness was $100; and that $3,000 would | 32 S. W. 871, 34 S. W. 919, cited by plaintiff, compensate plaintiffs for the death of their supports their contention. An examination son Grady. Upon these findings as a basis, the court entered judgment for plaintiffs in the sum of $5,000, but refused the prayer for a mandatory injunction restraining the defendant in the use of the septic tank. Upon appeal the Court of Civil Appeals held that the evidence was sufficient to sustain the judgment that the death of the son was caused by the maintenance of the septic tank, and also that the evidence was sufficient to make an issue of whether the alleged nuisance existed and was regularly occurring, and therefore permanent, but held that, as the structure was permanent and became a continuing nuisance from the beginning of its operation, the depreciated market value of the plaintiffs' property was susceptible of ascertainment when the use of the sewer began in September, 1913, and that therefore the statute of limitations began to run from that time. It therefore reversed the judgment in so far as allowing recovery of damages to the land was concerned, and entered judgment in that respect for defendant, and otherwise affirmed the judgment. 197 S. W. 309. of the application for writ of error in the Chenault Case discloses that the fundamental error considered there was presented in the writ. In the Lawson Case, the Supreme Court expressly declared it unnecessary to construe the statute. It is obvious from a review of the decision why it was unnecessary. The foundation of that suit was an illegal contract. The illegality of the contract was not directly assigned as error, but the court found that the special exceptions to the pleadings, which were the subject of the assignments in the writ and upon which the court was called upon to pass, involved the general objection to the contract's legality, and this, of course, made a decision as to its legality necessary without regard to any question of fundamental error. [2] The Court of Civil Appeals held that plaintiffs' right of action for damage to their land was barred by the two-year statute of limitation, because such damage was susceptible of ascertainment when the use of the septic tank began in September, 1913. The construction of the tank was upon land owned by the city. Its existence or operation did Application for writ of error was sued out not necessarily create a nuisance to plainby both plaintiffs and defendant. Although not assigned as error in the application for the writ, defendant asserts that the judgment against it on account of the death of Grady McCracken is fundamentally erroneous for the reason that a municipal corporation is not a "person" or "corporation" within article 4694, Revised Civil Statutes 1911, giving action for death caused by the wrongful act of another person or corporation [1] The Supreme Court is without jurisdiction to review fundamental errors, unless presented in the application for the writ, being confined by statute in its jurisdiction to the questions of law presented in the application for writ of error. Article 1546, Revised Civil Statutes 1911; Link v. City of Houston, 94 Tex. 378, 59 S. W. 566, 60 S. W. 664; Railway Co. v. Robertson et al., 103 Tex. 504, 121 S. W. 202, 131 S. W. 400, Ann. Cas. 1913A, 231; Scalfi v. State, 96 Tex. 559, 73 S. W. 441. The case of Harris v. Petty, 66 Tex. 514, 1 S. W. 525, relied upon by plaintiffs in support of their contention that it is the duty of the Supreme Court to consider errors apparent of record, even though not assigned in the application for the writ, was decided under article 1033 of the Revised Statutes of 1879, which made it the duty of the Supreme Court to determine questions of law, either assigned or apparent of record; but the pressent article is a limitation of that duty. Neither the holding in Railway Co. v. Chenault, 92 Tex. 501, 49 S W. 1035, nor that in the case of Coal Co. v. Lawson, 89 Tex. 394, tiffs, nor was its operation primarily injurious. It only became so by the manner of its negligent or wrongful use. The jury found that the operation or use of the tank did not begin to become offensive to plaintiffs to such an extent as to affect them in the comfort and enjoyment of their home until July, 1914. No cause of action in favor of plaintiffs in error arose until this consequential injury resulted; therefore the statute of limitation did not begin to run until this invasion to plaintiff's property upon that date. Grossman v. Railway Co., 99 Tex. 641, 92 S. W. 836; Parsons v. Light Co., 106 Tex. 212, 163 S. W. 1, L. R. A. 1916E, 960. [3] Defendant urges that, as there is no permanent injury to plaintiffs' land, and that as the cause of the injury is subject to being abated, therefore the measure of damage to be applied is such depreciation in its rental value or use as had occurred up to the time of the trial of the action, and not the depreciation in its market value. If the injury to the land is only temporary, and the nuisance also temporary and capable of being abated, then abated, then the defendant's contention must be sustained. But if the nuisance is of a permanent character and not subject to be abated, or if it is treated as permanent by the parties, or if the injury to the land is permanent and irremediable, the proper measure of damages to be recovered is the depreciation in the value of the property. Baugh v. Railway Co., 80 Tex. 56, 15 S. W. 587; Railway Co. v. Anderson, 79 Tex. 427, 15 S. W. 484, 23 Am. St. Rep. 350. The effect of the jury's finding is that it ["or" can be construed to mean "and," as is was not the erection of the tank, nor its op- permissible to effectuate the intention of the eration in a proper manner that caused the parties. injury, but that it was the overburdening of the tank, or its improper use, that created the nuisance resulting in damage. [4] It is true that defendant objected to the special issues submitted to the jury, the answers to which formed the basis of a judgment as for a permanent nuisance; but it did not request a special charge embodying issues to determine whether the nuisance could, without unreasonable expense to the party creating it, be abated, or whether the parties treated the nuisance as permanent. Neither did it submit a charge embodying a request for finding as to the amount of damages sustained as for a temporary nuisance. In a case of this character, it is a question of fact for the jury to determine whether the nuisance is permanent, or is so treated by the parties (City of Paris v. Allred, 17 Tex. Civ. App. 125, 43 S. W. 62, writ of error denied), and the issue not having been submitted, nor its submission requested, it will be deemed as found by the trial court, in support of its judgment; that is, that the nuisance was permanent or treated so by the parties (article 1985, Revised Civil Statutes 1911). The honorable Court of Civil Appeals found that the evidence was sufficient to raise the issue. We recommend that the judgment of the Court of Civil Appeals reforming and affirming the judgment be reversed, and that the judgment of the trial court be in all things affirmed. PHILLIPS, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. GREENWOOD, J., not sitting. COLEMAN et al. v. HALLUM et al. (No. 242-3434.) (Commission of Appeals of Texas, Section A. June 15, 1921.) 7. Animals 50 (2)-"Or," in order for stock law election, held to mean "and." Where the order for an election on the adoption of the law preventing hogs, goats, "and" sheep from running at large stated that the petition requested such election, and included a copy of the petition praying for such an election, the statement in the conclusion of the order that the election was to be held to determine whether hogs, goats, "or" sheep shall be permitted to run at large was manifestly contrary to the intent of the court to order the election asked for, so that the word [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, And: Or.] 2. Animals 50 (2)-Petition essential to jurisdiction to order stock law election. The petition for an election is fundamental and essential to the jurisdiction of the court in ordering an election on the adoption of the law prohibiting hogs, goats, and sheep from running at large within a county or subdivision. 3. Animals 50 (2)-Stock law election may be ordered at term petition is filed. Rev. St. 1911, art. 7212, requiring the commissioner's court at its next regular term after the filing of a petition therefor to order an law prohibiting animals from running at large, election on the question of the adoption of the was intended only to prevent the court from delaying the calling of an election, and does not invalidate an order for such election made at the same term at which the petition was filed. 4. Animals 50 (2)-Regularity of stock law election presumed. The proclamation of the county judge, declaring the result of an election adopting the law prohibiting hogs, goats, and sheep from running at large, raises the presumption that everything necessary to a legal election had been done, so that evidence such proclamation was issued is sufficient to show the validity of the election without evidence as to the manner of counting and tabulating the votes. 5. Animals 55-Impounding trespassing animals not adequate to prevent injunction. The statutory remedy by impounding animals unlawfully running at large and selling them to pay for the damage done by them given by Rev. St. 1911, arts. 7222-7226, is of doubtful adequacy, since the damage might exceed the value of the animals, or the animals doing the damage might not be identified, and therefore such remedy does not prevent the granting of an injunction to restrain an owner from unlawfully permitting his hogs to run at large. Error to Court of Civil Appeals of Fifth Supreme Judicial District. Suit by W. H. Coleman and others against Porter Hallum and others for an injunction restraining defendants from permitting their hogs to run at large. A judgment granting the injunction was reversed and judgment rendered for defendants by the Court of Civil Appeals (214 S. W. 989) and plaintiffs bring error. Judgment of the Court of Civil Appeals reversed and that of the trial court affirmed. A. B. Watkins, of Athens, for plaintiffs in error. J. J. Faulk, of Athens, for defendants in error. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) SPENCER, J. Plaintiffs sought and ob- prayed for, if the requisites of the statute tained an injunction restraining defendants have been complied with; nor is it at liberty from turning out their hogs and permitting to alter the request for an election by orderthem to run at large in two subdivisions of ing an election different from the one called Henderson county, Tex. They alleged that, for by the petition. The construction conas a result of an election held in one of tended for would ascribe to the commisthese subdivisions in 1889 and in the other sioner's court the doing of an unauthorized in 1890, the law preventing hogs, goats, and act-the ordering of an election without a sheep from running at large had been adopt- petition as a basis therefor-and also the ed in these subdivisions. ordering of an election that would be void because of the uncertainty as to what was to be submitted and voted upon therein. Such absurd results are to be avoided if it can be done consistent with the rules of law governing construction, and without doing violence to the language employed. The familiar canon of construction that the disjunctive participle "or" and the conjunction "and" may be read controvertibly whenever it is necessary to carry out the intention of the Legislature, as plainly expressed in the statute, should be applied in this case to effectuate the intention of the commissioner's court. In accordance with this rule, therefore, the word "and" should be substituted for "or" in the concluding sentence of the orders. Defendants urged that the elections were void because the orders calling them were not to determine whether hogs goats, and sheep should be prohibited from running at large as prayed in the petition, but were to determine whether hogs, goats, or sheep should be prohibited from running at large. If, as contended, the orders directed elections to determine whether hogs, goats, or sheep should be prohibited from running at large, it would be impossible to determine whether the voters intended to prohibit one or all classes of animals mentioned from running at large. But the orders construed as an entirety are not susceptible of that construction. Each order states that the petition requests an election to determine whether hogs, goats, and sheep shall be permitted to run at large. Included within each order is a copy of the petition, which contains a prayer for an election to determine whether hogs, goats, and sheep shall be permitted to run at large. Each order concludes: "And it appearing to the court that said petition is in due form of law, and is signed and presented to this court by more than 20 freeholders of the said subdivisions of said county, it is therefore ordered by the court that said petition be, and is hereby, granted, and [an] election is hereby ordered to be held in said subdivision at * *to determine whether hogs, goats, or sheep shall be permitted to run at large in said subdivision of [said] county." [1] It is clear that it was the intention of the commissioner's court to grant the request of the petitions for elections to determine of the petitions for elections to determine whether hogs, goats, and sheep should be permitted to run at large. In both orders it made the emphatic declaration that such requests were granted. To hold that the concluding sentence of the order is to govern in arriving at the intention of the commissioner's court is to disregard the plain intent of that body, as expressed in the orders when construed as a whole. . [2] The petition for an election is fundamental and jurisdictional. It is the basis of the court's action in ordering the election. The court is not at liberty to disregard the request to order the election The honorable Court of Civil Appeals cites McElroy v. State, 39 Tex. Cr. R. 529, 47 S. W. 359, by our Court of Criminal Appeals, as authority for holding the election void. The published opinion in that case does not contain the order calling the election, but it is clear from a reading of the opinion that the decision is bottomed upon the proposition that the order in that case was for an election to determine whether hogs, goats, or sheep should be permitted to run at large, and that the question was submitted and voted upon in that form. The facts are therefore essentially different from the facts of this case. [3] The contention that the election of 1889 is void because the commissioner's Court, in violation of article 7212, R. C. S. "Upon the filing of such petition the commissioner's court, at its next regular term thereafter, shall pass an order directing an election to be held throughout the county, or the particular subdivision thereof, as the case may be, on a day to be designated in the order, not less than 30 days from the date of such order." The object of the provision of this article was to require prompt action by the commissioner's court in calling such elections. The language employed is not a limitation upon the power of the court to call such elections at the term at which the petition therefor is filed; it is but a direction to the commissioner's court to call the election prayed for at the next succeeding term of the court after the filing of the petition. The Legislature was aware, of course, that in many instances petitions would be filed after the adjournment of the terms of the court, and that no action could be taken thereon during vacation. With the view to prevent the commissioner's court from postponing from term to term the ordering of elections, when properly petitioned to do so, this statute was passed. No intention contrary to this is manifested by the act. It is not susceptible of the construction that the Legislature intended to prevent the ordering of an election at the same term at which the petition was filed. Our Court of Criminal Appeals in Robertson v. State, 44 Tex. Cr. R. 270, 70 S. W. 542, reached a different conclusion in construing this statute. It held that a petition filed during a regular term of the commissioner's court could not be acted upon by the court at that term. With all due deference to that court, we do not feel constrained to follow it in its construction of this article. [4] Defendants urge that the elections were void because there is no evidence showing that the returns of the election were made to the county judge, opened, tabulated, and counted by him as the law requires, and that no proclamation declaring the results had ever been made by the county judge. turned out their hogs, and that they were running at large prior to the granting of the injunctive relief. The remedy given by the statute is of very doubtful adequacy. The well-known destructive nature of the hog is so great that it takes one of them but a small period of time to destroy several times its value, and it takes no imagination whatever to approximate the probable destruction that several hundred of them may cause to growing and gathered crops subject to their depredations. Again, the depredations might take place unseen by the party whose property is damaged, and the damage done not discovered until the hogs had moved on to inflict injuries upon another neighbor. Identification of the hogs in such cases would generally be impossible. In such instances, the statute would afford the injured party no remedy whatever. For these, and many other reasons, which might be given, the court did not err in granting the relief sought. Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994. We have considered all of defendants' assignments, and are of opinion that they should be overruled, and that the judgment of the Court of Civil Appeals should be reversed, and that of the trial court affirmed, and we so recommend. PHILLIPS, C. J. The judgment recom There is evidence in the record by the witness Watkins that the county judge issued his proclamation in both elections, declaring the result. The proclamation declar-mended in the report of the Commission of ing the result raises the presumption that Appeals is adopted, and will be entered as everything necessary to a legal election had the judgment of the Supreme Court. been done. Chapman v. State, 37 Tex. Cr. R. 167, 39 S. W. 113; Ewing v. Duncan, 81 Tex. 230, 16 S. W. 1000. (111 Tex. 419) HOLLAND v. NIMITZ et al. (No. 250-3452.) (Commission of Appeals of Texas, Section A. June 15, 1921.) [5] Defendants contend that, though the law had been legally adopted and is in force in the subdivisions mentioned, plaintiff is not entitled to injunctive relief because he has an adequate remedy at law. The remedy pointed out is the provision of the stock law. which permits the impounding of stock by the owner, lessee, or person in lawful control of land invaded by stock forbidden to be permitted to run at large, and the sale, after notice and assessment of damages to satisfy the expenses incurred, fees accrued, and damages sustained. Articles 7222-7226, Rev. Civ. St. 1911. The facts stated in the petition clearly and rightfully call for the assertion of the equitable powers of the court. The petition charged that plaintiff had planted and had growing upon his premises large fields of wheat and oats, and also had large quantities of corn, peanuts, and cotton upon his land subject to the depredations of several hundred of defendants' hogs, and that the loss occasioned by such depredations would be irreparable. An agreed statement by the parties show that defendants had Witnesses 159(14)-Party to probate proceedings, who was heir of testatrix, held incompetent to testify as to insanity. In a proceeding to contest the probate of a will, evidence by a daughter and heir of testatrix that, from observation of her acts, conduct, and mental and physical condition, she was of opinion that testatrix was insane at time of making the will, held properly excluded, as inadmissible, under Rev. St. 1911, art. 3690; the witness being a party to the proceedings. 2. Witnesses 160 (1)-Evidence as to care given decedent by defendant in will contest held not inadmissible as concerning transactions with decedent. will, a daughter and heir of decedent, though In a proceeding to contest the probate of a will, a daughter and heir of decedent, though a party to the proceeding, held competent to testify that, when decedent was brought to a certain town during her last illness, no preparations had been made to take care of her For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |