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(232 S.W.) think it sufficient to sustain the verdict. As trial amendment, especially with relation to to the award of $75 for damage to the crops, the failure of the petition to advise defendthe only witness to whose testimony we have ants what character of crops it was claimed been cited directly upon the amount of the plaintiff was deprived from raising by virtue injury was that of the witness Hanson, who of the overflow and washing of his land. We fixed the value of the cotton destroyed, after sustain the contention, and, in view of the deducting the price of picking and marketing, uncertain testimony as to the amount of the at $25. The testimony of the plaintiff is ex- damages to the crops, we think it was receedingly uncertain and unsatisfactory, and versible error to overrule the exception. The we are inclined to the view that the evidence question is a close one, but we are of the was too indefinite and uncertain to sustain opinion that plaintiff should have been remore than the sum of $25, estimated by quired to plead the character of crops he was Mr. Hanson.

prevented from raising and the character of [2] In view of the fact that we have con- crops which it was alleged were damaged. cluded that there was reversible error, and This information was within the knowledge since there may be another trial of the case, of plaintiff, and could readily have been givwe think it proper to say that appellants are en. It was proper that defendants should be right in their contention that, if the crops appraised thereof, in order to properly prehad not matured and were not ready for har- pare their defenses and procure their testivesting at the time of the overflow, the mony in support thereof. charge of the court should be so framed as [5] There is a similar complaint at the rethat the expense of cultivation should be fusal of the trial court to sustain exceptions taken into consideration as well as that of to the pleading claiming damages for permaharvesting. We also suggest that the charge nent injuries to the land. The specific point should guard against permitting the jury to is that the pleadings did not apprise defendassess any damages for permanent injuries ants of the area or quantity of land alleged for any period for which the damages may to have been permanently injured. appear to be barred by limitation. The criti- view the petition and trial amendment, the cism, leveled against the court's submission claim was for permanent injury to the enof this issue, as to the form of the question, | tire land. Regardless of the proof on the appears to be well taken.

subject, the averments were sufficient, as [3] Appellants also raise the point that the against the exceptions, to admit proof of trial amendment alleged damages for depriv- only partial injury to the land. ation of the use of the land in the year 1920, All other assignments have been carefully and also for permanent injury to the land considered, and are overruled. for the same period, which would amount

For the error indicated, the judgment will to a claim of double damages. If the point be reversed, and the cause remanded, unless be conceded, it does not affect the result of appellee should see fit, within ten days from this appeal, since the jury did not make any this date, to enter a remittitur of $75, the allowance for deprivation of the use of the amount of his recovery for damages to the land for the year stated. Indeed, no such crops. If this item should be remitted, the issue was submitted to the jury. The recov- judgment will be reformed and affirmed for ery was only for the crops during the year the balance of the recovery. 1919, and permanent injury to the land. It Reversed and remanded. has not been shown that these recoveries were overlapping, nor that the items constituted double damages. Under the principles an

Supplemental Opinion, nounced in Railway Co. v. Anderson, 79 Tex. The error for which this case was reversed 427, 15 S. W. 484, 23 Am. St. Rep. 350, and and remanded related to appellee's claim for Clark v. Dyer, 81 Tex. 339, 16 S. W. 1061, damages to his crops. We indicated in the we think these elements were separate and original opinion that, if this item should be distinct, and do not constitute the recovery remitted, the judgment would be reformed of double damages. These cases have been and affirmed for the balance of the recovery. cited with approval in numerous cases col- | This the appellee has now voluntarily done. lated in Rose's Texas Notes.

The remittitur being on file, such item will [4] Appellants complain of the refusal of the be eliminated, and the judgment affirmed for trial court to sustain certain special excep the balance. tions to parts of the petition and plaintiff's Reformed and affirmed.

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END OF CASES IN VOL. 232,

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