In the written argument on motion for rehearing, counsel for appellant makes this statement: "We respectfully submit that the court is not justified, under the facts in this case, in finding that there were accessible to Johnson, the owner of the land adjoining appellant's right of way where the animals went upon the track, and his tenants, other convenient ways open to the public road. According to the testimony of William Creed, the uncle of the young man who had the stock in charge at the time of the alleged injury, the upper crossing, near the upper side of the field, is in bad condition and is hardly ever used."
In reply to this statement, we copy from the statement of facts the following evidence, as appears on page 7 of the record: "There was a crossing and opening upon the upper side of the field that went out to the public road, besides this opening where the animals went upon the right of way. There was also an opening or gate at the Harwood house to get into the public road from the field where my uncle lived." The *Page 525 uncle referred to here is William Creed, mentioned in the above statement of appellant.
Again on pages 15 and 16 of the record, Mr. Johnson, the owner of the premises, testified: "There is another crossing at the upper side of the field, but it is not as convenient as the one I am talking about." (This latter crossing is the one where the animals entered upon the track.) In speaking of the crossing where the animals went upon the track, the witness testified as follows: "I asked the section foreman to repair this crossing and fix it so that we could cross there, because it was more convenient for us to get in and out to the public road which led to San Marcos at this point. At the time I asked the foreman to fix this crossing, I had another leading out into this same road and could also go out at the Harwood house. This last way was nearer, but we had an extra gate to go through."
A comparison of this evidence with the above statement of the appellant characterizes the latter, and it is needless for us to further comment upon it.
There is also in the motion to certify the question to the Supreme Court a further statement that the facts stated by this court were not justified by the evidence in the case. This is all that counsel says upon this subject, and does not undertake to point out any particular finding, other than that previously mentioned, that is not sustained by the evidence. This general statement is as inaccurate as the specific statement heretofore noticed, which is disproved by the evidence copied from the record. There is not a statement of fact in the opinion that is not supported by the evidence. The evidence shows conclusively, beyond dispute, beyond room for contention, that the opening in question was one of mere convenience, to afford a convenient way to Johnson and his tenants to the public road. A way of necessity must be more than one of convenience. If the owner of the land can use another way, he can not claim by implication the right to pass over that of another to get to his own. Allen v. Carlton,29 Tex. 78; Hall v. City of Austin, 48 S.W. Rep., 55; 19 Am. and Eng. Enc. of Law, 1 ed., 98.
"The right of way from necessity over the land of another is always of strict necessity, and this must not be created by the party claiming the right of way. It never exists where a man can get to his own property through his own land. That the way through his own land is too steep or too narrow does not alter the case. It is only where there is no way through his own land that the right of way over the land of another can exist. That a person claiming a way of necessity has already one way, is a good plea in bar to the plaintiff." This is the language of the court in McDonald v. Lindell, 3 Rawle (Pa.), 492. To the same effect is Morgan v. Mute, 60 Michigan, 338, and other cases that might be cited.
The court in Smiles v. Hastings, 22 New York, 223, says: "There can be no implication of a grant of a right of way of necessity where the *Page 526 grantees have the means of obtaining access to the lands granted without trespassing on the adjoining lands of the grantor or the property of a stranger. If they can be approached from a public highway or by passing through adjoining lands of the grantee no right of necessity would be implied."
From the rule thus announced, together with the evidence upon this subject, this court was clearly justified in the conclusion that the opening in the right of way fence and the way from there to the public road was not one of necessity; and the opening in question could not be justified upon this ground, because it was clearly shown that it was merely for the convenience of the owner of the adjoining lands west of appellant's right of way.
It is insisted in the request to certify that the disposition of this case by this court is in conflict with the decision of the Supreme Court in Railway v. Hanacek, 55 Southwestern Reporter, 1117, and the same case as decided by the Court of Civil Appeals in 56 Southwestern Reporter, 938; and also in conflict with the case of Railway v. Chenault, 60 Southwestern Reporter, 55; and the statement is also made that we have attempted to overrule the decision of the Supreme Court in the Hanacek case, supra.
In the Hanacek case, in the latter part of the opinion of the Supreme Court, occurs this statement: "Of course, our decision does not apply to those cases where openings or intervals in fences not authorized by law have been made." This and other expressions in the opinion are applicable to the case before us, and support us in the conclusion reached by us in deciding this case. There is little ambiguity in our opinion. It seems to us that it can be easily understood to apply to a state of facts which shows that the opening through which the animals went upon the track was not one provided for, permitted, or authorized by law. Nor could it be granted on the ground that it was one of necessity. In the case before us, the appellant's road did not divide an inclosure, and the opening was not for the purpose of permitting the owner of the premises to go from one part of his grounds to that upon the opposite side of the track. It is not pretended that it was a public crossing nor a neighborhood crossing, and that the opening was made for any such purpose; but beyond dispute it is shown that it was placed there for the private use of the owner of the premises west of the appellant's right of way. In the cases with which the appellant contends ours is in conflict, it is indisputably shown by the facts that the railway ran through inclosure, and that the openings were put there for the purpose of affording a way to and from the premises and inclosures divided by the right of way. These were instances in which the owners of the premises were entitled to the opening as a means of way from one part of the inclosure to the other. Here the case is entirely different, for the reason, as stated before, the right of way and track does not divide an inclosure. When we said concerning the Hanacek case was a *Page 527 mere matter of criticism, and not because it conflicted with the case we were called upon to decide. We availed ourselves of the privilege of merely criticising a decision of the Supreme Court, which we were of the opinion was not correctly decided.
On the question of witness fees, it is insisted that the disposition that we make of this subject is in conflict with the decision of the Supreme Court in Sapp v. King, 66 Tex. 570 [66 Tex. 570], and Flores v. Thorn, 8 Tex. 377 [8 Tex. 377]. We do not so construe those decisions. The case is clearly, in our opinion, different from Flores v. Thorn. There are some expressions in the case of Sapp v. King which have a tendency to support the contention of appellant, but when compared with the facts shown in the order of the trial court in ruling upon this subject, a different case is shown. In Sapp v. King it is in effect held that a witness can not justify his attendance in obedience to a subpoena in a case where the law did not authorize the issuance of such process. In this case the law did authorize a subpoena to be issued; and we think that Sapp v. King is correct in the proposition that a subpoena could not be waived by a witness in a case where the law did not authorize one to be issued; but where the witness resides in the county where the case is pending, the law authorizes a subpoena to be issued requiring his attendance upon the trial; and we do not see why he may not waive the issuance of such process and by agreement do that which the law would compel him to do, — that is, attend the trial as a witness.
But, however, if we are wrong in this conclusion, we think the ruling of the court may be maintained upon the ground that the subpoena issued from the justice court, in obedience to which the witness attended the trial there, and thereafter in obedience to the same process attended the trial in the county court, was sufficient to entitle him to his witness fees. The statute requires that the justice of the peace before whom the case is tried shall transmit to the county court, to which the case is appealed, all the original papers, together with copies of his orders, judgments, etc. The evident object of this requirement is that the original papers shall serve some purpose in the county court, and nothing can be gained by sending the subpoenas there unless it was intended that they should be regarded as process showing what witnesses were summoned. After the case reached the county court, it is clear that depositions that have been used upon trial in the justice court need not be again taken. Although the trial is de novo in the county court, the statute does not in terms require that any new process shall issue after the case reaches that court; and it is in harmony with economy to hold that all the process issued by the justice of the peace may be kept alive, in order to require the parties and witnesses to appear in the court to which the case is appealed. If the witness will appear and do appear in the county court in obedience to the subpoenas issued from the justice court, it would clearly be to the interest of the litigants, so far as the saving of costs and expenses are concerned. It is true, a *Page 528 subpoena could have issued from the county court to require the attendance of these witnesses, but when they appeared in obedience to the subpoena issued from the justice court, we can not well see how either of the parties could complain.
Motions overruled.