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point so as to throw the 13 acres in controversy south of the branch into the appellee's tract. In construing the field notes the court correctly instructed the jury that the meandering of the branch must be taken as the boundary to the end of the call "North 360 varas, a lyn brs. N. 70 deg. W. 2 vrs.” But it is very clear from the evidence that the jury disregarded this instruction in finding for the appellee the entire 13 acres in controversy. A tall marked stump of the lyn tree was found and identified, and a line run from that point the course and distance called for in the field notes, disregarding the postoak bearing trees, would leave to the appellant's side of the line a strip of land 100 varas wide for its entire distance.

This much of the finding of the jury is without evidence to support it. There was also much evidence tending to show that the branch was the line for the entire distance as contended for by the appellants, including the testimony of the surveyor, Enoch Broxson, who ran it originally when Becton and wife sold the tract to Gayle and wrote the deed for the parties, and the calls themselves certainly made the branch the line to the end of the call for “North 360 varas," and such being the case, it was error to receive the evidence of the surveyors Stokes and Duren, giving their opinions how the line should be run, in effect, that they would run it out by course and distance rather than follow the branch. As a natural object the branch controlled course and distance, and in marking the line the footsteps of the surveyor were to be followed rather than mistaken calls for course and distance.

The witnesses Stokes and Duren should not have been permitted to go over their evidence and testify again when recalled at the request of the jury after the case had been submitted as shown by the bill of exceptions. When any of the jury disagree about what a witness has testified upon any matter in issue, the proper practice is to recall the witness and to have him repeat under the direction of the court in the presence of the jury what his testimony was as to the particular point of disagreement and no other. Rev. Stats., art. 1309. As shown by the bill of exceptions the jurors were allowed to interrogate the witnesses at length, and it is not difficult to understand how these witnesses who had been allowed to give their opinions how they would run the line should again impress this matter upon the jury.

We are of the opinion that the former suit of Jones v. Barbee, in which Nunn was an intervener and in which Jones recovered judgment against Barbee adjudging the branch to be the line between his tract which lies south of the Griffin tract and the Barbee tract, was not shown to be res adjudicata of the issue in this suit, because it was not shown that there was an identity of issues even if the identity of parties should be deemed sufficient. The Jones tract lay south of and adjoining that of Griffin, and both tracts had formed one body of land belonging to Nunn, who had conveyed them to Jones and Griffin, and it was claimed in both suits that the branch was the line. It was so adjudicated in the Jones case, but in that case Jones not only claimed

that the branch was the original line, but that he held title to the branch by limitation. The jury found that the branch was the line, but whether because they believed it to have been the line as originally run or because Jones had had possession of the land for a sufficient length of time to confer title by limitation does not appear, and the identity of issues in the two cases is thus wanting and the contention of res adjudicata defeated. The judgment of the court below is reversed and the cause remanded.

Reversed and remanded.

GILL, Associate Justice, did not sit in this case.



Decided May 26, 1902.

1.-Railway Company-Obstructing Stream Statute Construed.

Where a railway embankment, for want of sufficient culverts and openings, caused the overflow waters of a river, which would otherwise have passed off in natural channels, to flow onto and remain on plaintiff's land, the railway company was liable for the injury occasioned thereby, and articles 4436, 4426, Revised Statutes, do not determine the liability in such case. 2.-Same-Common Law Rule.

Obstructing the waters of a running stream to another's hurt renders the party so doing responsible in damages therefor; and the statutory provisions in reference to the construction of railways across streams and water courses do not change the rule. 3.—Evidence-Expert Testimony.

It was competent for a witness who was not an expert, nor a civil engineer, to testify that there were depressions in plaintiff's land which the culverts in a railway embankment did not drain, and for which no openings were provided, since this did not involve matters of scientific kaowledge.

Appeal from Brazos. Tried below before Hon. J. C. Scott.

F.J. & R. C. Duff and J. W. Terry, for appellant.

Doremus & Butler and Ed. Scott, for appellee.

GILL, AssociaTE JUSTICE.—This suit was brought by the appellee, Lawrence Steele, against the appellant to recover the value of a crop

of growing cotton alleged to have been destroyed by the negligence of appellant in so constructing its roadbed and embankments as to cause water to overflow and stand thereon. A trial by jury resulted in a verdict and judgment for appellee for $2300, from which the railway company has appealed. In his pleadings appellee states his cause of action as follows:

“3. That prior to the construction of said railroad by the defendant, the said tract of land was owned and cultivated by the plaintiff, as

aforesaid, was well drained by natural channels and low places and depressions thereon, and water thereon from all sources whatsoever passed through said channels, depressions, and low places, and escaped from said land without overflowing or injuring the crops growing thereon, and crops thereon were not liable to injury from overflows of high water.

“4. That the defendant carelessly and negligently constructed its line of roadbed across plaintiff's said land and other land near plaintiff's land, and carelessly and negligently threw up and built embankments, and constructed its roadbed several feet higher than the land adjoining thereto, and several feet higher than plaintiff's said land, and the defendant carelessly and negligently and unskillfully built and constructed its roadbed and embankments over and across the natural channels and depressions by which the plaintiff's lands were drained of water as aforesaid, and negligently and carelessly filled up and obstructed the natural channels and depressions for the escape of the water from said land, and carelessly and negligently and unskillfully failed to provide and construct suitable and sufficient culverts, bridges, or other means of escape from said lands of such collections of water as might have been reasonably anticipated would collect on same, and as did, in fact, collect on same, as hereinafter alleged. “5. That during the spring of 1900, to wit, during the months of

of said year, Big Creek, a stream situated above and north of the said roadbed of defendant, and upon which plaintiff's said land is situated, overflowed its banks in the low places thereon, and the waters from said creek passed into the low places, channels, and depressions in plaintiff's said land and other lands adjacent thereto, through which it passed down to said roadbed and embankment, when it was thereby stopped, dammed up, and forced back on and overflowed plaintiff's said land, and upon which plaintiff then had a crop of cotton standing and growing, and the water thus dammed up and held back on plaintiff's land as aforesaid, overflowed, drowned out, and entirely destroyed 460 acres of plaintiff's said crop of cotton, which 460 acres was in cotton, all of which was of the reasonable market value of $10 per acre, to plaintiff's damage $4600.

“Plaintiff further alleges that prior to the construction of said railroad by the defendant, Big Creek, a local stream running near the Brazos River, and upon which plaintiff's said land was situated, as aforesaid, was of sufficient size and capacity to hold all waters therein, from local rains, etc. That water therefrom which overflowed the banks of said stream, except in low places, run into said creek from adjacent lands, and the water thus escaping from said creek run through such sluices and low places, and did not overflow the lands through which they run, and crops on said lands were not overflowed or injured, and not liable to injury from water overflowing same. That the said defendant carelessly and negligently constructed its roadbed west of Allenfarm, in Brazos County, Texas, and near to the Brazos River, and carelessly and negligently threw up and built an embankment and constructed its roadbed

several feet higher than the lands adjacent thereto, 'and carelessly and negligently filled up and obstructed the natural channels and depressions in said lands for the escape of water therefrom, and carelessly and negligently failed to provide and construct suitable and sufficient culverts, sluices, or other means for water to escape from and run off of the above said roadbed. That during the spring of 1900, and about the months of April and May of said year, the waters in the Brazos River overflowed the banks of said stream at low places therein above said railroad company's embankment, and were by said embankment dammed up and forced back over the country above said railroad, and were thereby forced into said Big Creek, causing same to rise and overflow the lands of plaintiff, upon which plaintiff then had growing a crop of cotton, and 460 acres of plaintiff's said crop were overflowed, drowned out, and destroyed, to plaintiff's damage $4600, as before alleged.”

Appellant answered by exceptions general and special, by general denial, and an averment that the flood or overflow was of such a character as could not have been reasonably foreseen and provided against. Other special defenses were also pleaded, but in view of the points presented in the brief need not be set out here.

Plaintiff was the owner of the land described in his petition, and in the spring of the year 1900 had growing thereon a crop of cotton. This land was situated near the Brazos River and adjoined Big Creek, a tributary thereof. In the spring of the year named the Brazos River and Big Creek overflowed their banks. Their waters spread out over adjacent lands, including plaintiff's, destroying the crops thereon and damaging plaintiff in the amount found by the jury.

Many years prior to the date named above the defendant had constructed its line of railway over and across the land of plaintiff and lands adjacent thereto. It ran immediately south of the land on which the crop was destroyed, the crop being between the railroad and Big Creek. Proceeding past that point the road ran near the Brazos River. Plaintiff's lands and those adjacent were bottom lands. The embankment of the railroad was higher than the lands, so that unless suitable culverts and bridges were placed wherever the lay of the land required, the embankment would hold, in the depressions thereon, such water as came upon it whether from overflow or from local rains. It would also retard the flow of the flood waters of the Brazos River. Some of these depressions or natural drains tended in the direction of the channel of Big Creek, others toward the Brazos River, and these latter are the ones which plaintiff claims were obstructed to his injury.

The evidence is sufficient to sustain the finding that the openings in and through the railroad embankment were not sufficient in number and in size to drain the plaintiff's land of the overflow waters as it naturally drained itself before the construction of the road, and that the overflow waters from the Brazos River which would otherwise have flowed off through the natural channels and depressions in the land were thus caused to flow on to plaintiff's land and to remain thereon, causing the

injury complained of, and that the faulty construction of defendants road as it approached the Brazos River adjacent to plaintiff's land caused the river to back its waters into Big Creek, causing the overflow of the latter stream, and that the defendant was negligent in the respects complained of.

Appellant contends in its propositions under its first four assignments of error that article 4436 of the Revised Statutes abrogated the common law rule as to damage occasioned by the obstruction of the natural flow of surface water and established a new rule in its stead. That the article in question applies only to surface waters, and as the water occasioning the damage complained of was not of that character, but was overflow water from large streams, the company can not be held liable under the statute in question. On the same theory it is contended that the exceptions urged against the petition and presenting the same questions should have been sustained.

It is contended also that the rights of plaintiff rest upon the article last mentioned and article 4426, and he can have no cause of action except for a breach of the duties imposed by one or both of said articles. The article in question is as follows: "In no case shall any railroad company construct any roadbed without first constructing the necessary culverts or sluices, as the natural lay of the land may require, for the necessary drainage thereof."

Article 4426 is as follows: "Such corporation shall have the right to construct its road across or along any stream, watercourse, street, highway, or canal which the route of the railroad may intersect or touch, but such corporation shall restore such stream or watercourse to its former state or to such a state as not to unnecessarily impair its usefulness.”

It may be true, as contended by appellant, that article 4436 prescribes the duty of the railway company only with reference to surface water due to local rains as contradistinguished from waters of overflowing streams. It seems to have been so held in Railway v. Helsley, 62 Texas, 593, though the distinction was not called for in that case, and in many other Texas cases which might be cited the article has been applied to cases in which damages were asked against railway companies for so constructing their lines as to obstruct the waters of running streams in times of high water. However, it has been held that water resulting from an overflow in districts where large bodies of land are thereby covered will be treated as surface water and the rights of persons affected thereby will be determined accordingly. 28 Enc. of Law, old ed., p. 965.

But it occurs to us that the right of the plaintiff to recover in this case does not depend upon the article in question, nor indeed upon article 4426, quoted above. It will be observed that the article last named clothes railway companies with the power to construct their lines across streams, watercourses, canals, and public roads and streets, imposing the condition that the usefulness of such streams or highways shall not be

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