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tained by defendants, for the simple reason have been entitled to the remainder of the that, by their mere presence upon the land, estate, after deducting the value of the term they excluded the railway company from the and of the fixtures upon the land. But such exercise of any right to or control over the would not have been the status of their ground on which they stood. By their plead- rights after the termination of the lease. ings, and in the course of the trial, the de- Schreiber v. Railroad Co., 115 Ill. 340, 3 N. fendants sought to recover the value of their E. 427. The land, with all of its improveimprovements, as possessors in good faith, ments, would then have belonged to the ownunder the provisions of the statute regulat- er of the fee, unless the lessees had and exing actions of trespass to try title. Those ercised the right to remove the buildings put provisions apply in cases where the plain- there by themselves. The lessees would no tiff recovers the possession of land, and takes longer have had an interest in the land, but with it the permanent improvements which compensation for its entire value, if taken, have been put upon it and become part of would have been made to the owner. That it. The ground on which compensation for owner having previously conveyed the right such improvements is allowed is the fact that of way, so far as he could do so, no conthe estate recovered by the plaintiff has been demnation would have been necessary. The improved and enhanced in value by the pos- prior rights conferred by the lease having sessor, acting in good faith, which renders it been enjoyed in full, and satisfied, they just that the plaintiff, in taking the benefit would no longer have affected the operation of the addition to his property, should make of the conveyance of the right of way. The fair compensation. The provisions relied on maker of that deed was bound by its terms, do not apply here. The very reason why and could not have disputed its operation. plaintiff recovers, if it does recover, is that The lessees could have urged no objection, the presence of the structures, instead of be- because their prior rights would have been ing a benefit to, is inconsistent with, the at an end. Does the fact that the owner of right of way privilege, and is an unjustifia- the fee conveyed it to the lessees before the ble interference with its exercise. The relief expiration of their term alter the result? to which it is entitled, if any at all, is, not We think not. The lessees, after that conto recover the land absolutely, taking with it veyance, could claim no more than the sum all permanent fixtures upon it, but to en- of the rights held at the time of its execu

tion by the owner of the fee and themselves.

the land incumbered with it freed from the The latter are satisfied by the full enjoy

presence of those things which impair the ment of the term. If they had the right, at right. Hence there was no error in reject- the expiration of the term, to remove the ing evidence offered to establish the claim buildings, it is not denied by the judgment. for improvements made in good faith under The rigbts of the owner of the fee were subthe statute. It is claimed, however, by as- ordinate to the right of way, which he had signments of error and in argument, that ap- conveyed to the railway, and his vendee took pellants had property rights in the improve- the title subject to that right. The title to ments made under the lease, superior to the the easement was conveyed, subject, alone, right of way acquired by appellee under its to the rights of the owners of the term. deed, and that, by the judgment, the struc- Those rights having been enjoyed, and extures erected under the lease are taken or pired, before the suit was brought, nothing damaged without

without compensation. If this remained for which compensation was rewere true, the judgment would be wrong. quired. From what has been said, it is apWe assume, for the purposes of the decision, parent that the rulings made during the trial, that this question is not affected by the en- of which complaint is made, are immaterial, try upon the land by the railway company and could not properly have affected the reprior to the execution of the lease under sult. Affirmed. which appellants claim. That lease being in existence when the deed for the right of way was executed, appellee took the right of way subject to all rights vested in the lessees by

EDRINGTON v. BUTLER et al. their lease. It could not have condemned (Court of Civil Appeals of Texas. Nov. 2, the property without compensating them for

1895.) that portion of its whole value which their TRESPASS TO TRY TITLE — BY WHOM MAINTAINproperty rights under the lease represented;

ABLE-COMMON SOURCE OF TITLE-SUFFICIENand, in the property for the value of which

CY OF TITLE-Costs_TAXATION-Review.

1. Trespass to try title may be brought by compensation would have been required, the

one in possession against one out of possespermanent improvements upon the land sion. would have been included. In re Appoint

2. Where one party claims under a conveyment of Park Com'rs (Super. Buff.) 1 N. Y.

ance to the wife as her separate property, and

the other under a subsequent execution sale as Supp. 763. This would have been their right the property of the husband, a prima facie case to compensation, had proceedings been in- of common source of title is made out. stituted to condemn the land while the fee

3. Possession of land is prima facie evi

dence of title as against one out of possession was still in the original owner and the term

asserting an adverse claim against the person in the lessees. The owner of the fee would in possessiou.

4. Taxation of costs will not be reviewed on of the evidence to show this to have been appeal unless a motion to correct it was made the separate property of the wife, as bein the court below.

tween her and her husband. The contention Appeal from district court, Clay county; is that title was not shown from the state George E. Miller, Judge.

to either the husband or the wife, but the Action by M. E. Butler and another against

answer is, this was sufficiently done by H. C. Edrington and others. From a judg- | proof of actual possession. We do not conment for plaintiffs, defendant Edrington ap- strue the judgment of the lower court as peals. Affirmed.

taxing against appellant the costs incurred Hogsett & Orrick and L. C. Barrett, for between the plaintiffs and those of the deappellant. W. G. Eustis, for appellees. fendants who filed disclaimers. At any

rate, if it is subject to this construction, a HEAD, J. This suit was instituted in the

motion should have been made in the court form of an action of trespass to try title by

below to correct it there. Sulphur Springs Mrs. M. E. Butler, joined by her husband, & Mt. P. Ry. Co. v. St. Louis, A. & T. Ry. A. L. Butler, against appellant and a num- Co., 2 Tex. Civ. App. 657, 22 S. W. 107, and ber of others, to recover the several tracts

23 S. W. 1012. The judgment appealed from of land described in the petition. Mrs. But

is affirmed. ler claimed under deeds purporting to convey the land to her as her separate property, and the court found upon sufficient evidence

HEATON et al. v. STEWART. that it was in fact paid for with her own means. She also proved actual possession

(Court of Civil Appeals of Texas. Nov. 7,

1895.) under these deeds, but did not trace her title to some of the tracts back to the state.

VERDICT-CONFLICTING EVIDENCE, Appellant claimed under an execution sale

A verdict on conflicting evidence, finding

the line of a survey to be as claimed by one of of the land as the property of the husband, the parties, will not be disturbed on appeal. A. L. Butler, made since the conveyances to his wife. The contention that "trespass to

Appeal from district court, Victoria county;

S. F. Grimes, Judge. try title" cannot be maintained by one in

Trespass to try title by J. C. Heaton and possession against one out of possession can

another against Herman Stewart. Defendnot be sustained. This form of action is provided to test almost all manner of con

ant had judgment, and plaintiffs appeal. Af

firmed. flicting claims to land, regardless of which of the contending parties may have posses

Glass, Callender & Carsner, for appellants. sion. It is sufficient if the plaintiff owns Fly & Hill and A. S. Thurmond, for appellee. the land, and either has, or is entitled to, the possession, and that the defendant claims WILLIAMS, J. This was an action of tresit adversely. Moody V. Holcomb, 26 Tex. pass to try title brought by appellants to re719; Titus v. Johnson, 50 Tex. 237; Rains v. cover a strip of land which plaintiffs claimed Wheeler, 76 Tex. 393, 13 S. W. 324. We are as being included within the John Cahill suralso of opinion that, where the plaintiff vey, of which plaintiffs were in possession. Declaims under a conveyance to the wife as fendant claimed the land in cuntroversy by virher separate property, and the defendant tue of a patent for it issued to him by the claims under a subsequent execution sale as state in 1889, asserting that it was not inthe property of the husband, a prima facie cluded in the Cahill survey, but was, prior case of claim under a common source is to his location, a vacant strip between the made out. It has been so held where the western line of the Cahill and the eastern defendant claims under an heir of the plain- line of the Phillip Dimmitt league. The Philtiff's grantor. Stinnett v. House, 1 Posey, lip Dimmitt grant was older than the Cahill, Unrep. Cas. 484. We are also of opinion that and the field notes of the latter defined its actual possession is sufficient prima facie western line as being identical with the eastevidence of title in the plaintiff as against ern line of the Dimmitt. Defendant claimed one out of possession, who asserts an ad- that the surveyor who surveyed the Cahill verse claim, as well as against one who be- mistook the locality of the Dimmitt line, and comes a trespasser in the assertion of his called for it before he had reached it, thus alleged rights. It has long been the settled leaving a vacancy. The lines of both surveys law in this state that proof of actual posses- at that point are in the prairie, and neither sion by the plaintiff is prima facie evidence they nor the corners are marked. According of title in him as against a trespasser. Ex- to the field notes of the Cahill, its southern press Co. v. Dunn, 81 Tex. 85, 16 S. W. 792. line crossed the Linnville road at a certain It may be that such possession by tenants distance from its southwestern corner, and of the wife would not be sufficient evidence its western line also crossed it after leaving of title in her to authorize a recovery in her that southwest corner. It follows that the favor against the husband, or those claim- Dimmitt line, if it really was where the suring under him, but it would be prima facie veyor supposed it to be, would have crossed evidence as against others; and in this case the Linnville road. The defendant offered no question is raised as to the sufficiency evidence which is not of a conclusive character, but which the jury could have accept- The contract entered into by the parties was ed, showing the location of that road, and that the appellee was to sink a well on the thus locating the western line of the Cahill premises of appellant, at a place designated with reference to it. Both parties seem to by the appellant, and get water of sufficient concede that the Dimmitt line is further west quantity for 50 or 75 head of stock,-a stiputhan the line thus ascertained, and, if this lated price to be paid when the water was testimony is true, it must result that the sur- obtained. There was no agreement about the veyor who surveyed the Cahill was mistaken quality of the water, and nothing was said in calling for it at the place where he fixed about it in making the contract. Appellee the boundary of the Cahill. The jury could sunk the well at a place pointed out by the have found, under the testimony, that the appellant, and obtained a sufficient quantity surveyor located the Cahill line where ap- of water as agreed upon, but the appellant pellee claims it to be, and hence that the land refused payment for the alleged reason that in controversy was not included in that sur- the water was not of a suitable quality. The vey. The charge of the court pointedly sub- trial in the court below was to a jury, and mitted this question to the jury, and their evidence was received upon an issue as to verdict cannot be disturbed. We intimate no the quality of the water. A reversal of the opinion further than this as to the correct- judgment is sought for errors assigned upon ness of the surveys made by the witness the admission of evidence, and in the giving Stewart. The overruling of exceptions to de- and refusing of instructions to the jury by the fendant's answer caused no injury to appel- | court, and also that the verdict of the jury lants, as the court required the jury to find was against the evidence, which, it is confor plaintiffs if the land sued for was intended, showed that the essential purpose and cluded in the Cahill lines. Nor is the admis- object of making the contract were, within sion and subsequent exclusion of the deeds the meaning and intention of both parties, to offered by defendant for the purpose of show- obtain suitable drinking water of sufficient ing that plaintiffs had conveyed all of their quantity for the stock, and that appellee uninterest in the Cahill tract ground for re- dertook to do so before he should be entitled versal. The plaintiffs were in possession, and to any compensation whatever. In view of the court held and charged the jury that they the construction of the contract made by this must recover unless defendant shows that the court, it is unnecessary to examine the eviland sued for was not embraced by the grant dence to see if any conclusion that might be under which they claimed. The evidence was involved in the verdict that the water was not of a character to mislead or influence the of a suitable quality for drinking by the stock jury in the face of the pointed instructions ought to be sustained. Nor is it necessary given. Affirmed.

to pass upon the questions raised as to the evidence and the charge of the court, for they all become immaterial. By the terms of the

contract, appellee's compensation was made BLUM V. BROWN.1

to depend upon his getting a sufficient quan(Court of Civil Appeals of Texas. Nov. 7,

tity of water for the number of stock men1895.)

tioned. Nothing was said about the quality

of the water, and there was no agreement CONTRACT TO SINK WELL-PERFORMANCE.

that it should be of a suitable quality. To In an action on a contract by which plaintiff agreed to sink a well on defendant's

ingraft upon the contract a condition that the land which would furnish sufficient water for

water should also be of a quality suitable for defendant's stock, but which contained no stip- drinking would be to imply a condition that ulation as to the quality of the water, plaintiff does not appear upon the face of the contract. can recover on proof that the agreed quantity was furnished, though the water was not suit

Appellee's contract was not to sell water of able for the stock to drink.

his own to the appellant, but to procure for

him, on his own land, at a place pointed out Appeal from district court, Galveston county; William H. Stewart, Judge.

by him, a sufficient quantity of such water

as the appellant had. The water was the Action by J. T. Brown against Leon Blum. Judgment for plaintiff, and defendant ap

property of the appellant, and, though he

knew nothing of its quantity or quality, neipeals. Affirmed.

ther did the appellee. It would be unreasonScott, Levi & Smith, for appellant. John able to imply the further condition that the C. Walker, for appellee.

water should be of suitable quality, when the

appellant had only contracted for a sufficient GARRETT, O. J. The appellee, J. T.

quantity. Since the

Since the evidence conclusively Brown, recovered a judgment in the district

shows that the quantity of water called for court of Galveston county against Leon Blum,

by the contract was obtained, it is immatethe appellant, for the sum of $1,100 and in

rial whether it was suitable for the stock to terest, upon a contract to sink a well upon

drink or not, and, as all the errors assigned the appellant's ranch in Lampasas county.

affect that issue only, they will not be passed

upon. The judgment of the court below is 1 Rehearing denied.

affirmed. Affirmed. v.33s.W.no.1-10

Vol.

above indicated, the defendant was guilty TEXAS & P. RY. CO. V. BROWN. of negligence, and that the plaintiff, on ac(Court of Civil Appeals of Texas. Nov. 9, count of nonage, should not be deemed re1895.)

sponsible for contributory negligence. On RAILROAD COMPANIES-INJURY TO CHILD IN YARD

account of the injuries

the injuries sustained, Carl -DEGREE OF CARE-PLEADING.

Brown, suing by his next friend, J. R. 1. In an action against a railroad company Brown, recovered a verdict and judgment in for injuries to a child 10 years old, while playing on cars in its yard, where the complaint al

the sum of $1,500, from which this appeal is leged that defendant had for a long time al

prosecuted. lowed children to play in its yard, and there was evidence that plaintiff had previously

Opinion. played there without objection, and that de

The first assignment of error assails the fendant's foreman saw plaintiff there before the

first paragraph of the court's charge, readaccident, and that plaintiff was in view of the engineer of the switch engine which caused it,

ing thus: “A railway company, in the conit was proper to charge that a railway com- duct of its business of moving and operatpany, in operating its cars, is bound to use or

ing its trains, is bound to use such care as dinary care to avoid injuring a person on its premises by its permission or invitation.

a man of ordinary prudence would use un2. Defendant cannot complain of an in- der like circumstances to avoid injuring a struction which charged that it owes no duty person who may be upon its premises by its to a child of tender years on its premises without permission till his danger is known to it, permission or invitation, and the failure so and not then unless it has notice of his inca

to do would constitute negligence on its pacity to care for his safety, but that, with part.” It is urged that this instruction is such notice, defendant must use ordinary care

erroneous, because the issue neither of perto avoid injuring the child. 3. Allegations in a complaint that plain

mission nor of invitation was raised by the tiff was a child of 10 years, and that defend- pleadings or the evidence. Among the facts ant's agents saw his danger in time to have

alleged in the petition are the following: avoided the injury, but negligently forced cars against that on which he was standing, are

On November 9, 1888, the defendant kept sufficient, on general demurrer, to charge that

and maintained certain railway yards in the defendant's agents knew of plaintiff's incapacity city of Ft. Worth, a large and prosperous to care for himself.

city. At that time several public streets 4. The violation of a city ordinance, from which an injury to a third person results, is

crossed these yards, and at all hours of the negligence per se.

day people were accustomed to frequent, Appeal from district court, Tarrant coun

travel over, along, and upon them. By lity; S. P. Greene, Judge.

cense, usage, and permission of the company, Action by Carl Brown, by J. R. Brown, his

these people were allowed and permitted to next friend, against the Texas & Pacific Rail

pass over and along the yards, without reway Company for damages for personal in

gard to the street crossings. On account of juries. Judgment was rendered for plaintiff, the presence of cars and machinery on the and defendant appeals. Affirmed.

side tracks in these yards, children of plain

tiff's age were attracted there out of curiosiGeo. Thompson, for appellant. R. L. Car

ty, and for the purpose of playing, and, lock, for appellee.

prior to the accident in question, had for a

long time, by the usage, custom, invitation, Statement of the Case, with Conclusions of

and permission of the defendant, been alFact.

lowed, without molestation or restraint, to TARLTON, C. J. November 9, 1888, Carl remain on them, and to play about them and A. Brown, a child of 10 years, was playing the side tracks. Carl Brown, an immature with five or six other boys in the yards of child, of about 10 years of age, was atappellant, situate within the corporate lim- tracted to some coal cars of defendant standits of the city of Ft. Worth. In these yards ing on the side track, and, while playing are located a main track and side tracks. thereon with other childish companions, was Carl Brown had climbed on a car containing there hurt, by the negligent actions of the coal, and was standing with his feet on the defendant, which violently switched its cars drawhead, holding onto the brake wheel, be- against those on which the plaintiff was tween two stationary cars, when against the standing, without ringing the bell or blowlatter several others were kicked by a switch ing the whistle, or giving any character of engine, catching his foot and mashing and warning, though the plaintiff and his comseriously injuring it. No warning of the panions were prior to the accident seen by approach of the cars was given, whether by the agents and employés of the defendant ringing the bell or blowing the whistle, or in charge of its engine and yards, and might otherwise. It appears that these yards were have been seen by them in the exercise of the frequented by boys of tender years for the slightest care and diligence. There was tespurpose of playing, and we infer that, with timony showing that boys had prior to this the tracks and cars upon them, the premises time frequently played upon these premises; were so situated as to be alluring or at- that the plaintiff himself had played therein tractive to children. The verdict of the jury, without objection on the part of any agent supported by evidence, establishes the fact of the defendant; that no watchman was that, in pushing the cars in the manner kept about the premises, though in a portion of the city where people lived on either side, highway as they go upon it to school or upof the track; that the foreman of the switch- on errands. Children, wherever they go, ing crew on the occasion in question saw must be expected to act upon childish inthe plaintiff and his companions just prior stincts and impulses; and others, who are to the accident; and that the engineer op- charged with the duties of care and caution erating the switch engine could easily have towards them, must calculate upon this, and seen the plaintiff, because he was in plain take precautions accordingly. If they have view of the children. It is manifest, we exposed to the observation of children any. think, that on the issue of permission the thing which would be tempting to them, and charge was responsive both to the plead- which they, in their immature judgment, ings and the testimony. The question of in- might naturally suppose they were at liberty vitation is more embarrassing. Among the to handle or play with, they should expect definitions of the verb "to invite" given by that liberty to be taken.” This doctrine of the lexicographer Webster is “to allure,' implied invitation has been recognized in “to attract.” An invitation, then, may be this state in the cases known as “Turntable said to consist in the act, not only of re- Cases." Evansich v. Railway Co., 57 Tex, questing or bidding, but in that of alluring 124, and the cases following it. Cars standor attracting, or in a situation which in it- ing upon a track, exposed at any moment to self is attractive or alluring. In other words, be abruptly moved, with consequent peril to it may be express or implied. That there a child who might be on or about them, was no express invitation in this case goes might be considered dangerous machinery. without saying. That the presence in the In Cook v. Navigation Co., supra, a tugboat yards, or upon the premises and cars, of the seems to have been thus treated. In the latappellant, of persons for purposes other than ter case the court interpreted the act of cerof business, could but embarrass it in the tain members of the crew of the boat, in indischarge of its duties as a common carrier, viting children thereupon, as not binding upis quite manifest. Yet if it permit persons on the company operating the boat, because to frequent its premises,-if by the struc- of the want of authority in the persons exture of its yards and its tracks, or by the tending the invitation. In this we deem it manner in which its cars are held and op- proper to say that the court evidently had erated,-it has created a situation which is in mind an express, and not an implied, inalluring or attractive to children of tender vitation. We conclude, upon the assignment age, can it be said that the case of an im- considered, that the jury could not reasonplied invitation does not arise? Such is the ably have understood the word "invitation," situation presented by the plaintiff's plead- used in the charge, otherwise than as here ing in this instance, and by testimony tend- indicated; that the issue of invitation in the ing to support it. It must be remembered

manner indicated arose upon the pleading that the conduct of a child is to be measured and the evidence, and it was for the jury to differently from that of an adult; that to say whether, under the facts "in the very the latter a situation may be repellent, as case” (Railway Co. v. Evansich, 61 Tex. 7), fraught with danger, whereas to the former it was established, or, in other words, wheth-incapable of comprehending the feature of

er the plaintiff was upon the premises and menace-the same situation may be inviting, the car of the defendant by its permission attractive, or alluring. Cook v. Navigation or implied invitation, and whether the deCo., 76 Tex. 357, 13 S. W. 475. In the case fendant used ordinary care to abstain from of Harriman v. Railway Co., 45 Ohio St. 11, injuring him. 12 N. E. 451, et seq., damages were held to be The second paragraph of the court's charge recoverable against the company on account is as follows: "A railway company, in the of injuries sustained by a child of nine years conduct of its business of moving and operin handling a torpedo left by the defendant ating its trains, owes no duty to a person on its track, along which the child was pass- who may be on its premises without its pering. "It will be found," says the court, "by mission, either express or implied, unless an examination of the cases in which con- and until it discovers that such person so on sideration is given to this subject, that there its premises without permission is in danger is in reality no invitation; and it is implied from the operation of its said trains, or unfrom slight circumstances, generally from less such person so on its premises without the fact that children, following their incli- permission, from nonage or other cause, is nations, go upon and into exposed and fre- incapable of properly caring for its own safequented objects and places.” So the court ty; and not then until the presence of such in that case quotes with emphatic approval person on its premises is in fact known to the following language of Judge Cooley in the defendant, its agents or servants in the case of Powers v. Harlow, 53 Mich. 507, charge of such trains, and the further fact 19 N. W. 257: "The moving about of the that such person is incapable of properly carchildren upon the land where they were at ing for his own safety is known to said deliberty to go while they were not actually fendant, its agents or servants in charge of employed was as much an incident to their said trains, or would have been known to being there as is the loitering or playing of them by the use of such diligence and care children outside of the traveled part of the as a man of ordinary prudence would have

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