The following statement of the pleadings of both parties is taken from the opinion of the Court of Civil Appeals.
"The appellees, B.F. and L.D. Kiersey, sued the Aransas Pass Railway Company, appellant, by separate suits, which suits were consolidated, and in which appellees claimed damages to their land and crops located in the valley of Cow Bayou, in Falls County, Texas, on account of overflows resulting from appellant's alleged defective and negligently constructed trestle across Cow Bayou.
"The appellant answered by general exception and special exceptions, and specially pleaded that the waters of Cow Bayou for the years 1899 and 1900 were unprecedented and extraordinary, and highest ever known within the memory of man, and too high to be foreseen and anticipated or provided against by persons of ordinary prudence, and that the channel and valley of Cow Bayou was a mile or more wide in some places. Appellant further alleged that it constructed its tracks carefully, skillfully and scientifically, so as to provide against the very highest waters of Cow Bayou, in that it constructed all of the culverts and sluices demanded by the natural lay of the land complained of, and sufficient for its drainage; and that the appellant's bridge or trestle across the valley of Cow Bayou, and the channel thereof, was more than a quarter of a mile long and extended from hill to hill of the average height of about fifteen feet, and supported by 12-inch piling twelve feet apart the whole distance, which was adequate and ample to admit of the passage of great floods in their natural flow without interruption. Appellant alleged that in the absence of its railway the same overflows would have resulted, and would have done the same damage; that they were acts of God. Appellant pleaded the statute of two years limitation as against each of the appellees."
The honorable Court of Civil Appeals filed no separate conclusions of fact in the case and we must assume that the evidence was sufficient to support the judgment of the trial court. The claim of the plaintiffs rested upon evidence which tended to prove that in the years 1899 and 1900 there were heavy rains which caused a very considerable rise in the waters of Cow Bayou, in Falls County, upon which the plaintiffs' lands were situated, and that the bridge of the defendant constructed across the said Cow Bayou at that point caused the water to flow out upon and to stand upon the lands of the plaintiffs for a considerable time, whereby the crops and the land of the said plaintiffs were greatly damaged. The railroad company constructed its bridge and trestle, which extended across the creek and from hill to hill, across the bottom land in 1889, and from that time down to the time of the overflow complained of there had been frequent inundations of the land. There was *Page 595 proof which was practically undisputed that the channel of the bayou had been filled with mud and driftwood until it was not so deep as it was at the time that the bridge was constructed over it, and it was claimed by the plaintiffs that the filling up of the channel was caused by the improper construction of the bridge which caused the extensive overflow of the water upon their lands. The evidence was conflicting as to whether the construction of the bridge and trestle had anything to do with the filling of the channel of the bayou. There was proof that the overflow which caused the damage sought to be recovered was unusual, and it was claimed by the defendant that it was unprecedented, and therefore that the defendant was not liable for the damages which resulted therefrom. The case was tried by a jury and a verdict was rendered for B.F. Kiersey for $2498.75 and for L.D. Kiersey $1751.25, and judgment rendered for each of the parties for the amount so found. The Court of Civil Appeals affirmed the judgment, and the railroad company applied to this court for writ of error based upon the following assignments of error:
It is claimed that the trial court committed error in giving to the jury the following charge: "If you believe from the evidence that although the overflows mentioned above were extraordinary, yet if such an overflow could have been reasonably anticipated by railroad engineers of ordinary prudence, caution and skill, and the building of the embankments and trestle could have so constructed them so as not to have caused the damage complained of, if any, then a failure upon the part of the defendant company to so construct the road at the point in question would, in law, constitute negligence." And, "If you believe that the floods of 1899 and 1900 were unprecedented, that is, such as could not have been reasonably anticipated by a prudent man skilled in such work as constructing railroads across such streams as the one in question, then it would be the act of God, for which the company would not be liable, and if you so find you will return a verdict for the defendant company."
Plaintiff in error asserts that the trial court erred in refusing to give the following special charges requested by it: "It appearing from the undisputed evidence in this case that the damages complained of by the plaintiff to the lands occurred in part prior to two years before the filing of plaintiffs' suits, and it appearing that there is no evidence showing what part of the damages complained of to said land occurred within two years, no basis for computing said damages to said land has been shown, you will therefore find for the defendant." "If you believe from all of the evidence in this case that the damages of which the plaintiffs complain of, to their lands and crops would have resulted, had not the defendant's trestle, as complained of by the plaintiffs, been built across the valley of the Cow Bayou, you will find for the defendant."
The court did not err in giving the two charges set out above, complained of by the defendant in error. The charges correctly presented to the jury the law applicable to the facts. Gulf C. S.F. Ry. Co. v. *Page 596 Pomeroy, 67 Tex. 501; Gulf C. S.F. Ry. Co. v. Holliday,65 Tex. 519.
There was error in admitting the evidence of the different witnesses as to the value of the land before the construction of the bridge and trestle. The difference between the value just before and just after the overflow is the proper measure of damages to the land. Trinity S. Ry. Co. v. Schofield, 72 Tex. 500 [72 Tex. 500]. The honorable Court of Civil Appeals held that this error was harmless because other witnesses testified that the value of the land was the same just before the flood as it was just before the construction of the bridge, but, as we read the record, the strength of the evidence as to the value of the land is in the testimony relating to such value before the construction of the railroad, and we think it might have influenced the jury in arriving at the value of the land just before the flood came.
The court did not err in refusing to give the charge requested by defendant on the subject of limitations, because there was evidence of damage to the crops which occurred in the year 1899, less than two years before the filing of the suit, for which recovery might have been had, and which were separable from any damage which might have accrued at a time prior thereto. Under this evidence the defendant was not entitled to a verdict as against the entire claim of the plaintiffs. In the general charge the district judge had limited the right of recovery to such damages as were shown to have accrued within two years prior to the institution of the suits.
The court stated the ground of the plaintiffs' claim against the defendant in this language: "The plaintiffs in the above entitled and numbered causes sue to recover damages from the defendant company for injury to the property described in the petition of each, occasioned by the failure of the defendant company to so construct its road across Cow Bayou as not to interfere with the passing of the water through the valley at a point where the plaintiffs property is situated." A defense to this claim on the part of plaintiffs was presented by the charge requested and refused if the facts stated were true, because it is apparent that if such damage would have accrued in the absence of the structure, then its existence could not have caused the damage and the defendant was entitled to have that defense presented in an affirmative form. Railway Co. v. Hall, 12 Texas Ct. Rep., 377; Texas Trunk Ry. Co. v. Ayres, 83 Tex. 268; Missouri K. T. Ry. Co. v. McGlamory, 89 Tex. 365.
The defendants in error claim that this paragraph of the general charge embraced the defense presented by the special instruction refused: "If therefore you believe from the evidence before you that the defendant railway company so constructed its road across the valley of Cow Bayou at the place in question that it materially interfered with passage of the water through the channel and valley of said Cow Bayou, and that by reason of such interference, if any, the water was caused to stand upon plaintiffs' lands and crops to such an extent as that such lands and crops or either were injured, and you further find that said *Page 597 injury, if any, would not have occurred but for the construction of its said road across said valley, in the manner in which same was constructed, then if you so find, the plaintiffs would be entitled to recover." If this was the only expression upon the right of plaintiffs below to recover, the language, "and you further find that said injury, if any, would not have occurred but for the construction of its said road across said valley, in the manner in which same was constructed, then if you so find, the plaintiffs would be entitled to recover," is not so explicit a presentation of the defense as to justify the refusal of the special request of the defendant. But the court also instructed the jury as follows: "If you believe from the evidence that defendant company defectively constructed its roadbed across the Cow Bayou, in manner and form as stated in plaintiffs' petitions, and that as a direct consequence of such defective construction the channel of said creek was filled up, and you further believe from the evidence that as a direct consequence of the defective construction of said road and the filling up of said channel of said creek, surface waters which had been diverted from their natural and ordinary course were caused to flow over plaintiffs' said lands, and that they destroyed plaintiffs' crops of cotton, if any they had growing thereon, then you will find for plaintiffs the reasonable market value of said crops," etc. The first charge quoted above related to the obstructing of the flow of the water through the channel and valley as a ground of recovery, while the second points directly to filling of the channel whereby the water was caused to flow over the valley, and to the latter the defense is not made to apply. The difference in the charges was calculated to lead the jury to believe that the same limitation did not apply to damages caused by the filling of the channel as was applied to obstructing the flow of the water.
Because the court erred in refusing the special charge, the judgments of the District Court and Court of Civil Appeals are reversed and the cause remanded.
Reversed and remanded.