This suit was brought by appellant to recover damages caused by the construction of a side track upon a street in the city of Sherman upon which a lot owned by him abutted. Upon the verdict of a jury judgment was rendered in favor of the plaintiff for $127.33 1/3.
The appellant complains of the following charge was given by the court: "In estimating the amount of the damage, if you find in favor of plaintiff, you will not take into consideration either the benefits or the injuries to plaintiff's said property which he may receive or sustain in common with the community generally where said property is situated, which results from the construction and operation of the defendant's railway, and which are not peculiar to him and connected with his ownership, use, and enjoyment of the said property."
For reasons fully explained in the case of the Gulf, Colorado Santa Fe Railway Company v. Fuller (63 Tex. 467), we think the charge was correct.
The only other assignment is upon the following charge of the court: "If you find from the evidence that the plaintiff owned the land described in his petition, and that defendant constructed and is operating a switch of its railway track along East Street adjacent thereto, and that from this the said land while so owned by plaintiff has been depreciated in value, you will find in favor of plaintiff damages to be measured by the amount of such depreciation, which would be the difference, if any, between the market value of said land just before the construction of said switch and just after its construction; * * * but plaintiff would not be entitled to recover for any depreciation that may have resulted to said land before he purchased it, from the city of Sherman having granted to the defendant the right to construct its track along said street, nor for any acts done by defendant in pursuance of such grant prior to plaintiff's said purchase."
We can see no objection to the charge. It was proper for the jury in estimating the damage to consider all the facts affecting the lot on account of the construction and use of the switch as prescribed by the charge first referred to. We think the case was sufficiently and correctly presented to the jury by the charges given. At any rate, if the plaintiff desired additional instructions he should have requested them.
The judgment is affirmed.
Affirmed.
Delivered June 16, 1891. *Page 407