Opinion.— By the amended petition, this suit had for its object the trial of the title to the land described in the same, and also to recover damages for injuries to appellant’s crop, as well as the land, resulting from the trespass. In a subsequent amendment, appellees pretermitted the question of title, but relied upon the allegations of damages resulting from the trespass, and sought a recovery therefor. This change in the pleading was not the assertion of a new cause. of action, which would have authorized the court to adjudge the costs to that date against the appellees.
In the trial amendment it was alleged that appellant, through its servants and agents, wilfully and maliciously and in utter disregard of appellee’s rights, and against their protests, pulled down and removed their fence, and in divers *444ways harassed and vexed appellees, to their damage in the sum of §500 exemplary damages in addition to actual damages. The effect of the demurrer was to admit the truth of these allegations; that is, for the purpose of testing the sufficiency of the pleading to which the demurrer Avas directed. Thus tested, the allegations Avere sufficient to authorize a recovery for exemplary damages; and in cases where such recovery may be had, the amount to be awarded must be determined from the facts and circumstances of the case. Court did not err in overruling the demurrer to appellant’s trial amendment. As appellees had conveyed the right of Avay to appellant, they thereby consented to a proper construction of the road-bed, and will be held to have waived all damages resulting from such construction. In fact, no claim is asserted by them for any other damages than for an improper construction and destruction of their fence, etc.
Appellant’s ansAver, to Avhich the demurrer was sustained, sought to avoid.liability for the damages claimed, because the road was constructed across appellees’ land by Roach & Tearney, independent contractors, for whose negligence, it is claimed, the appellants Avere not liable. In H. & G. N. R’y Co. v. Header, 50 Tex., 77, the converse of this prop osition is held to be the law.
In our opinion the court did not err in sustaining the demurrer to that part of appellant’s answer.
Another objection urged to the judgment is that it is not supported b^y the evidence. This objection is not sustained by the record. There was no motion made to dismiss the case after the evidence was in, on the ground of improper allegations for the purpose of imposing upon the jurisdic1 tion of the court; nor Avas that question otherAvise made in the loAver court, so as to require its consideration here.
Judgment affirmed.