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tained by defendants, for the simple reason that, by their mere presence upon the land, they excluded the railway company from the exercise of any right to or control over the ground on which they stood. By their pleadings, and in the course of the trial, the defendants sought to recover the value of their improvements, as possessors in good faith, under the provisions of the statute regulating actions of trespass to try title. Those provisions apply in cases where the plaintiff recovers the possession of land, and takes with it the permanent improvements which have been put upon it and become part of it. The ground on which compensation for such improvements is allowed is the fact that the estate recovered by the plaintiff has been improved and enhanced in value by the possessor, acting in good faith, which renders it just that the plaintiff, in taking the benefit of the addition to his property, should make fair compensation. The provisions relied on do not apply here. The very reason why plaintiff recovers, if it does recover, is that the presence of the structures, instead of being a benefit to, is inconsistent with, the right of way privilege, and is an unjustifiable interference with its exercise. The relief to which it is entitled, if any at all, is, not to recover the land absolutely, taking with it all permanent fixtures upon it, but to enforce its right of way privilege, and have the land incumbered with it freed from the presence of those things which impair the right. Hence there was no error in rejecting evidence offered to establish the claim for improvements made in good faith under the statute. It is claimed, however, by assignments of error and in argument, that appellants had property rights in the improvements made under the lease, superior to the right of way acquired by appellee under its deed, and that, by the judgment, the structures erected under the lease are taken or damaged without compensation. If this were true, the judgment would be wrong. We assume, for the purposes of the decision, that this question is not affected by the entry upon the land by the railway company prior to the execution of the lease under 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 their lease. It could not have condemned the property without compensating them for that portion of its whole value which their property rights under the lease represented; and, in the property for the value of which compensation would have been required, the permanent improvements upon the land would have been included. In re Appointment of Park Com'rs (Super. Buff.) 1 N. Y. Supp. 763. This would have been their right to compensation, had proceedings been instituted to condemn the land while the fee was still in the original owner and the term in the lessees. The owner of the fee would

have been entitled to the remainder of the estate, after deducting the value of the term and of the fixtures upon the land. But such would not have been the status of their rights after the termination of the lease. Schreiber v. Railroad Co., 115 Ill. 340, 3 N. E. 427. The land, with all of its improvements, would then have belonged to the owner of the fee, unless the lessees had and exercised the right to remove the buildings put there by themselves. The lessees would no longer have had an interest in the land, but compensation for its entire value, if taken, would have been made to the owner. That owner having previously conveyed the right of way, so far as he could do so, no condemnation would have been necessary. The prior rights conferred by the lease having been enjoyed in full, and satisfied, they would no longer have affected the operation of the conveyance of the right of way. The maker of that deed was bound by its terms, and could not have disputed its operation. The lessees could have urged no objection, because their prior rights would have been at an end. Does the fact that the owner of the fee conveyed it to the lessees before the expiration of their term alter the result? We think not. The lessees, after that conveyance, could claim no more than the sum of the rights held at the time of its execution tion by the owner of the fee and themselves. The latter are satisfied by the full enjoyment of the term. If they had the right, at the expiration of the term, to remove the buildings, it is not denied by the judgment. The rights of the owner of the fee were subordinate to the right of way, which he had conveyed to the railway, and his vendee took the title subject to that right. The title to the easement was conveyed, subject, alone, to the rights of the owners of the term. Those rights having been enjoyed, and expired, before the suit was brought, nothing remained for which compensation was required. From what has been said, it is apparent that the rulings made during the trial, of which complaint is made, are immaterial, and could not properly have affected the result. Affirmed.

EDRINGTON v. BUTLER et al. (Court of Civil Appeals of Texas. Nov. 2, 1895.) TRESPASS TO TRY TITLE-BY WHOM MAINTAINABLE-COMMON SOURCE OF TITLE-SUFFICIEN CY OF TITLE-COSTS-TAXATION-REVIEW. 1. Trespass to try title may be brought by one in possession against one out of possession.

2. Where one party claims under a conveyance to the wife as her separate property, and the other under a subsequent execution sale as the property of the husband, a prima facie case of common source of title is made out.

3. Possession of land is prima facie evidence of title as against one out of possession asserting an adverse claim against the person in possessiou.

4. Taxation of costs will not be reviewed on appeal unless a motion to correct it was made in the court below.

of the evidence to show this to have been the separate property of the wife, as between 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.

Action by M. E. Butler and another against H. C. Edrington and others. From a judgment for plaintiffs, defendant Edrington appeals. Affirmed.

Hogsett & Orrick and L. C. Barrett, for appellant. W. G. Eustis, for appellees.

HEAD, J. This suit was instituted in the form of an action of trespass to try title by Mrs. M. E. Butler, joined by her husband, A. L. Butler, against appellant and a number of others, to recover the several tracts of land described in the petition. Mrs. Butler claimed under deeds purporting to convey the land to her as her separate property, and the court found upon sufficient evidence that it was in fact paid for with her own means. She also proved actual possession under these deeds, but did not trace her title to some of the tracts back to the state. Appellant claimed under an execution sale of the land as the property of the husband, A. L. Butler, made since the conveyances to his wife. The contention that "trespass to try title" cannot be maintained by one in possession against one out of possession cannot be sustained. This form of action is provided to test almost all manner of conflicting claims to land, regardless of which of the contending parties may have possession. It is sufficient if the plaintiff owns the land, and either has, or is entitled to, the possession, and that the defendant claims it adversely. Moody v. Holcomb, 26 Tex. 719; Titus v. Johnson, 50 Tex. 237; Rains v. Wheeler, 76 Tex. 393, 13 S. W. 324. We are also of opinion that, where the plaintiff claims under a conveyance to the wife as her separate property, and the defendant claims under a subsequent execution sale as the property of the husband, a prima facie case of claim under a common source is made out. It has been so held where the defendant claims under an heir of the plaintiff's grantor. Stinnett v. House, 1 Posey, Unrep. Cas. 484. We are also of opinion that actual possession is sufficient prima facie evidence of title in the plaintiff as against one out of possession, who asserts an adverse claim, as well as against one who becomes a trespasser in the assertion of his alleged rights. It has long been the settled law in this state that proof of actual possession by the plaintiff is prima facie evidence of title in him as against a trespasser. Express Co. v. Dunn, 81 Tex. 85, 16 S. W. 792. It may be that such possession by tenants of the wife would not be sufficient evidence of title in her to authorize a recovery in her favor against the husband, or those claiming under him, but it would be prima facie evidence as against others; and in this case no question is raised as to the sufficiency

to either the husband or the wife, but the answer is, this was sufficiently done by proof of actual possession. We do not construe the judgment of the lower court as taxing against appellant the costs incurred between the plaintiffs and those of the defendants who filed disclaimers. At any rate, if it is subject to this construction, a motion should have been made in the court below to correct it there. Sulphur Springs & Mt. P. Ry. Co. v. St. Louis, A. & T. Ry. Co., 2 Tex. Civ. App. 657, 22 S. W. 107, and 23 S. W. 1012. The judgment appealed from is affirmed.

HEATON et al. v. STEWART. (Court of Civil Appeals of Texas. Nov. 7, 1895.)

VERDICT-CONFLICTING EVIDENCE.

A verdict on conflicting evidence, finding the line of a survey to be as claimed by one of the parties, will not be disturbed on appeal.

Appeal from district court, Victoria county; S. F. Grimes, Judge.

Trespass to try title by J. C. Heaton and another against Herman Stewart. Defendant had judgment, and plaintiffs appeal. Affirmed.

Glass, Callender & Carsner, for appellants. Fly & Hill and A. S. Thurmond, for appellee.

WILLIAMS, J. This was an action of trespass to try title brought by appellants to recover a strip of land which plaintiffs claimed as being included within the John Cahill survey, of which plaintiffs were in possession. Defendant claimed the land in controversy by virtue of a patent for it issued to him by the state in 1889, asserting that it was not included in the Cahill survey, but was, prior to his location, a vacant strip between the western line of the Cahill and the eastern line of the Phillip Dimmitt league. The Phillip Dimmitt grant was older than the Cahill, and the field notes of the latter defined its western line as being identical with the eastern line of the Dimmitt. Defendant claimed that the surveyor who surveyed the Cahill mistook the locality of the Dimmitt line, and called for it before he had reached it, thus leaving a vacancy. The lines of both surveys at that point are in the prairie, and neither they nor the corners are marked. According to the field notes of the Cahill, its southern line crossed the Linnville road at a certain distance from its southwestern corner, and its western line also crossed it after leaving that southwest corner. It follows that the Dimmitt line, if it really was where the surveyor supposed it to be, would have crossed the Linnville road. The defendant offered evidence which is not of a conclusive char

acter, but which the jury could have accepted, showing the location of that road, and thus locating the western line of the Cahill with reference to it. Both parties seem to concede that the Dimmitt line is further west than the line thus ascertained, and, if this testimony is true, it must result that the surveyor who surveyed the Cahill was mistaken in calling for it at the place where he fixed the boundary of the Cahill. The jury could have found, under the testimony, that the surveyor located the Cahill line where appellee claims it to be, and hence that the land in controversy was not included in that survey.

The charge of the court pointedly submitted this question to the jury, and their verdict cannot be disturbed. We intimate no opinion further than this as to the correctness of the surveys made by the witness Stewart. The overruling of exceptions to defendant's answer caused no injury to appellants, as the court required the jury to find for plaintiffs if the land sued for was included in the Cahill lines. Nor is the admission and subsequent exclusion of the deeds offered by defendant for the purpose of showing that plaintiffs had conveyed all of their interest in the Cahill tract ground for reversal. The plaintiffs were in possession, and the court held and charged the jury that they must recover unless defendant shows that the land sued for was not embraced by the grant under which they claimed. The evidence was not of a character to mislead or influence the jury in the face of the pointed instructions given. Affirmed.

BLUM v. BROWN.1

(Court of Civil Appeals of Texas. Nov. 7, 1895.)

CONTRACT TO SINK WELL-PERFORMANCE.

In an action on a contract by which plaintiff agreed to sink a well on defendant's land which would furnish sufficient water for defendant's stock, but which contained no stipulation as to the quality of the water, plaintiff can recover on proof that the agreed quantity was furnished, though the water was not suitable for the stock to drink.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by J. T. Brown against Leon Blum. Judgment for plaintiff, and defendant appeals. Affirmed.

Scott, Levi & Smith, for appellant. John C. Walker, for appellee.

GARRETT, C. J. The appellee, J. T. Brown, recovered a judgment in the district court of Galveston county against Leon Blum, the appellant, for the sum of $1,100 and interest, upon a contract to sink a well upon the appellant's ranch in Lampasas county.

1 Rehearing denied.

v.33s.w.no.1-10

The contract entered into by the parties was that the appellee was to sink a well on the premises of appellant, at a place designated by the appellant, and get water of sufficient quantity for 50 or 75 head of stock,-a stipulated price to be paid when the water was obtained. There was no agreement about the quality of the water, and nothing was said about it in making the contract. Appellee sunk the well at a place pointed out by the appellant, and obtained a sufficient quantity of water as agreed upon, but the appellant refused payment for the alleged reason that the water was not of a suitable quality. The trial in the court below was to a jury, and evidence was received upon an issue as to the quality of the water. A reversal of the judgment is sought for errors assigned upon the admission of evidence, and in the giving and refusing of instructions to the jury by the court, and also that the verdict of the jury was against the evidence, which, it is contended, showed that the essential purpose and object of making the contract were, within the meaning and intention of both parties, to obtain suitable drinking water of sufficient quantity for the stock, and that appellee undertook to do so before he should be entitled to any compensation whatever. In view of the construction of the contract made by this court, it is unnecessary to examine the evidence to see if any conclusion that might be involved in the verdict that the water was of a suitable quality for drinking by the stock ought to be sustained. Nor is it necessary 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 to depend upon his getting a sufficient quantity of water for the number of stock mentioned. Nothing was said about the quality of the water, and there was no agreement that it should be of a suitable quality. To ingraft upon the contract a condition that the water should also be of a quality suitable for drinking would be to imply a condition that does not appear upon the face of the contract. Appellee's contract was not to sell water of his own to the appellant, but to procure for him, on his own land, at a place pointed out by him, a sufficient quantity of such water as the appellant had. The water was the property of the appellant, and, though he knew nothing of its quantity or quality, neither did the appellee. It would be unreasonable to imply the further condition that the water should be of suitable quality, when the appellant had only contracted for a sufficient quantity. Since the evidence conclusively shows that the quantity of water called for by the contract was obtained, it is immaterial whether it was suitable for the stock to drink or not, and, as all the errors assigned affect that issue only, they will not be passed upon. The judgment of the court below is affirmed. Affirmed.

TEXAS & P. RY. CO. v. BROWN. (Court of Civil Appeals of Texas. Nov. 9, 1895.)

RAILROAD COMPANIES-INJURY TO CHILD IN YARD -DEGREE OF CARE-PLEADING.

1. In an action against a railroad company for injuries to a child 10 years old, while playing on cars in its yard, where the complaint alleged that defendant had for a long time allowed children to play in its yard, and there was evidence that plaintiff had previously played there without objection, and that defendant's foreman saw plaintiff there before the accident, and that plaintiff was in view of the engineer of the switch engine which caused it, it was proper to charge that a railway company, in operating its cars, is bound to use ordinary care to avoid injuring a person on its premises by its permission or invitation.

2. Defendant cannot complain of an instruction which charged that it owes no duty to a child of tender years on its premises without permission till his danger is known to it,

and not then unless it has notice of his incapacity to care for his safety, but that, with such notice, defendant must use ordinary care to avoid injuring the child.

3. Allegations in a complaint that plaintiff was a child of 10 years, and that defendant's agents saw his danger in time to have avoided the injury, but negligently forced cars against that on which he was standing, are sufficient, on general demurrer, to charge that defendant's agents knew of plaintiff's incapacity to care for himself.

4. The violation of a city ordinance, from which an injury to a third person results, is negligence per se.

Appeal from district court, Tarrant county; S. P. Greene, Judge.

Action by Carl Brown, by J. R. Brown, his next friend, against the Texas & Pacific Railway Company for damages for personal injuries. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

Geo. Thompson, for appellant. R. L. Carlock, for appellee.

Statement of the Case, with Conclusions of

Fact.

TARLTON, C. J. November 9, 1888, Carl A. Brown, a child of 10 years, was playing with five or six other boys in the yards of appellant, situate within the corporate limits of the city of Ft. Worth. In these yards are located a main track and side tracks. Carl Brown had climbed on a car containing coal, and was standing with his feet on the drawhead, holding onto the brake wheel, between two stationary cars, when against the latter several others were kicked by a switch engine, catching his foot and mashing and seriously injuring it. No warning of the approach of the cars was given, whether by ringing the bell or blowing the whistle, or otherwise. It appears that these yards were frequented by boys of tender years for the purpose of playing, and we infer that, with the tracks and cars upon them, the premises were so situated as to be alluring or attractive to children. The verdict of the jury, supported by evidence, establishes the fact that, in pushing the cars in the manner

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The first assignment of error assails the first paragraph of the court's charge, reading thus: "A railway company, in the conduct of its business of moving and operating its trains, is bound to use such care as a man of ordinary prudence would use under like circumstances to avoid injuring a person who may be upon its premises by its permission or invitation, and the failure so to do would constitute negligence on its part." It is urged that this instruction is erroneous, because the issue neither of permission nor of invitation was raised by the pleadings or the evidence. Among the facts alleged in the petition are the following: On November 9, 1888, the defendant kept and maintained certain railway yards in the city of Ft. Worth, a large and prosperous city. At that time several public streets crossed these yards, and at all hours of the day people were accustomed to frequent, travel over, along, and upon them. By license, usage, and permission of the company, these people were allowed and permitted to pass over and along the yards, without regard to the street crossings. On account of the presence of cars and machinery on the side tracks in these yards, children of plaintiff's age were attracted there out of curiosity, and for the purpose of playing, and, prior to the accident in question, had for a long time, by the usage, custom, invitation, and permission of the defendant, been allowed, without molestation or restraint, to remain on them, and to play about them and the side tracks. Carl Brown, an immature child, of about 10 years of age, was attracted to some coal cars of defendant standing on the side track, and, while playing thereon with other childish companions, was there hurt, by the negligent actions of the defendant, which violently switched its cars against those on those on which the plaintiff was standing, without ringing the bell or blowing the whistle, or giving any character of warning, though the plaintiff and his companions were prior to the accident seen by the agents and employés of the defendant in charge of its engine and yards, and might have been seen by them in the exercise of the slightest care and diligence. There was testimony showing that boys had prior to this time frequently played upon these premises; that the plaintiff himself had played therein without objection on the part of any agent of the defendant; that no watchman was kept about the premises, though in a portion

of the city where people lived on either side of the track; that the foreman of the switching crew on the occasion in question saw the plaintiff and his companions just prior to the accident; and that the engineer operating the switch engine could easily have seen the plaintiff, because he was in plain view of the children. It is manifest, we think, that on the issue of permission the charge was responsive both to the pleadings and the testimony. The question of invitation is more embarrassing. Among the definitions of the verb "to invite" given by the lexicographer Webster is "to allure," "to attract." An invitation, then, may be said to consist in the act, not only of requesting or bidding, but in that of alluring or attracting, or in a situation which in itself is attractive or alluring. In other words, it may be express or implied. That there was no express invitation in this case goes without saying. That the presence in the yards, or upon the premises and cars, of the appellant, of persons for purposes other than of business, could but embarrass it in the discharge of its duties as a common carrier, is quite manifest. Yet if it permit persons to frequent its premises,-if by the structure of its yards and its tracks, or by the manner in which its cars are held and operated,-it has created a situation which is alluring or attractive to children of tender age, can it be said that the case of an implied invitation does not arise? Such is the situation presented by the plaintiff's pleading in this instance, and by testimony tending to support it. It must be remembered that the conduct of a child is to be measured differently from that of an adult; that to the latter a situation may be repellent, as fraught with danger, whereas to the former -incapable of comprehending the feature of menace-the same situation may be inviting, attractive, or alluring. Cook v. Navigation Co., 76 Tex. 357, 13 S. W. 475. In the case of Harriman v. Railway Co., 45 Ohio St. 11, 12 N. E. 451, et seq., damages were held to be recoverable against the company on account of injuries sustained by a child of nine years in handling a torpedo left by the defendant on its track, along which the child was passing. "It will be found," says the court, "by an examination of the cases in which consideration is given to this subject, that there is in reality no invitation; and it is implied from slight circumstances, generally from the fact that children, following their inclinations, go upon and into exposed and frequented objects and places." So the court in that case quotes with emphatic approval the following language of Judge Cooley in the case of Powers v. Harlow, 53 Mich. 507, 19 N. W. 257: "The moving about of the children upon the land where they were at liberty to go while they were not actually employed was as much an incident to their being there as is the loitering or playing of children outside of the traveled part of the

highway as they go upon it to school or upon errands. Children, wherever they go, must be expected to act upon childish instincts and impulses; and others, who are charged with the duties of care and caution towards them, must calculate upon this, and take precautions accordingly. If they have exposed to the observation of children anything which would be tempting to them, and which they, in their immature judgment, might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken." This doctrine of implied invitation has been recognized in this state in the cases known as "Turntable Cases." Evansich v. Railway Co., 57 Tex. 124, and the cases following it. Cars standing upon a track, exposed at any moment to be abruptly moved, with consequent peril to a child who might be on or about them, might be considered dangerous machinery. In Cook v. Navigation Co., supra, a tugboat seems to have been thus treated. In the latter case the court interpreted the act of certain members of the crew of the boat, in inviting children thereupon, as not binding upon the company operating the boat, because of the want of authority in the persons extending the invitation. In this we deem it proper to say that the court evidently had in mind an express, and not an implied, invitation. We conclude, upon the assignment considered, that the jury could not reasonably have understood the word "invitation," used in the charge, otherwise than as here indicated; that the issue of invitation in the manner indicated arose upon the pleading and the evidence, and it was for the jury to say whether, under the facts "in the very case" (Railway Co. v. Evansich, 61 Tex. 7), it was established, or, in other words, whether the plaintiff was upon the premises and the car of the defendant by its permission or implied invitation, and whether the defendant used ordinary care to abstain from injuring him.

The second paragraph of the court's charge is as follows: "A railway company, in the conduct of its business of moving and operating its trains, owes no duty to a person who may be on its premises without its permission, either express or implied, unless and until it discovers that such person so on its premises without permission is in danger from the operation of its said trains, or unless such person so on its premises without permission, from nonage or other cause, is incapable of properly caring for its own safety; and not then until the presence of such person on its premises is in fact known to the defendant, its agents or servants in charge of such trains, and the further fact that such person is incapable of properly caring for his own safety is known to said defendant, its agents or servants in charge of said trains, or would have been known to them by the use of such diligence and care as a man of ordinary prudence would have

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