North Line street which abuts upon appellee's property had ever been worked by the city, and as it was shown that there was but little travel on that part of the street, and as a small portion of it was practically impassable, thereby causing travel to diverge and go around that portion, that therefore that portion of the street had been abandoned. In that holding we think the trial court fell into error. "In determining whether a highway has been abandoned, it is proper to consider the mode in which the abutters and the public acquired their rights, as well as what the necessity and convenience brought about by subsequent progress and growth may require. Roads and streets are frequently laid out or dedicated with reference to future requirements, as well as with reference to the existing condition of things, and it is not just to assume that, because all of the way is not used by the public or by the abutters, it has been abandoned." Elliott on Roads & Streets, p. 660. "But except where it is otherwise provided by statute, mere nonuser by the public, or the payment of taxes on such property by an individual, or delay in opening or improving the street, or a lease of the street, or permitting a steam railroad to occupy a part of the street, or continued encroachments on the streets by structures, or the inclosure of the street, or a part thereof, is ordinarily not sufficient of itself to show an abandonment." 28 Cyc. 841, 842. In Reilly v. City of Racine, 51 Wis. 526, 8 N. W. 417, it was said: "Until the time arrives when any street or part of a street is required for actual public use, and where the public authorities may be properly called upon to open it for the public use, no mere nonuser, of any length of time, will operate as an abandonment of it, and all persons in possession of it will be presumed to hold subject to the paramount right of the public." tion, we have reached the conclusion that it is not in fact correct, and that the correct rule is that when a street, or other highway, has been legally established, the officer or governing body charged with the duty of opening up, constructing, and maintaining such street or highway has the right to remove soil, gravel, and other like material from one part of such street or highway to another portion of that or some other street or highway, for the purpose of constructing or maintaining the latter; and our views upon the subject are so well expressed by the Supreme Court of Connecticut in the case of City of New Haven v. Sargent, 38 Conn. 50, 9 Am. Rep. 360, that we copy as follows from the opinion of the court in that case: "It is apparent in this case that the real question is whether the city of New Haven has a right, as against an adjoining proprietor, to take soil from one street, in the network of streets in one particular part of the city, and use it in another street of that network near, but not directly connected with, the street from which the soil is taken, for the purpose of making and grading such other street; such soil being reasonably necessary for that purpose. Whether, in other words, the city has a legal and exclusive right, as against the respondent, to carry the soil from in front of his land (which must necessarily be removed by some one in grading the street), and deposit it in a depression in Derby avenue for the necessary purpose of raising that avenue up to a conforming grade. Whenever the performance of a public duty is imposed upon any person or corporation, the powers necessary for its full performance are impliedly, if not expressly and specifically, given. The duty of laying out, making, and maintaining public highways has been imposed upon the towns in which they are situate. In relation to the laying out of highways their powers and duties are expressly prescribed, but in relating to making and maintaining them their powers are not prescribed, but are implied, and are commensurate with the duty imposed. We must look, then, at the character of the duty, and see what powers are necessary for its performance. "There has never been in our history a statutory provision prescribing the manner in which highways should be made. Nor has there been any provision in respect to the material of which to make them. By immemorial usage material has been taken for their construction within the limits of the [3] 2. But appellees present the contention that, although North Line street may have been a public street, and may not have been abandoned, as was the condition as to Washington street, the city owns nothing but an easement, which is the right to use the land as a public highway, and that the fee remains in appellees; and therefore it is contended, as a necessary corollary, and more particularly because the Constitution of this state prohibits the taking of private property for a public use without compensation, that the city of La Grange had no au- | highways of the town. Hills have been exthority to remove gravel or soil from either Washington or North Line street where those streets abutted upon appellees' property, and use the same for the purpose of improving other streets not abutting upon appellees' property, and one of which streets was not within the corporate limits of the city. There is some plausibility in the contention referred to, but, after due considera cavated and swamps and valleys filled up with the material taken from the excavation, and material existing in excess at one place has been taken to another where it was deficient. These things and many more have been done from the necessity of the case and the nature of the duty, according to the discretion of the officers appointed to do them; and, where they have acted reasonably, their "Railroads are usually authorized to take additional land outside of their limits for the purpose of obtaining material for the construction of their roads, because it is deemed possible that more material may be required than can be readily obtained within their prescribed limits. No such provision has ever been made in favor of towns, and it is perfectly obvious that the Legislature and the towns have considered the right and the power to take material where it could be found within the limits of the highways, and use it in any other place where it was necessary to use it, and where it was not to be found, as a right and power necessarily incident to the easement, and adequate to the wants of the public in respect to such material. power has never been successfully question- | of adjoining proprietors, originating in the ed. The inference derivable from the silence same necessity, has existed in respect to the of the statute in relation to the manner in maintenance of highways, as to their conwhich material was to be obtained for the struction, and the same inference may be construction of the highways, from the im- drawn from it. memorial usage in relation to it, and the necessity in which it originated, and from whatever judicial decision we have respecting it, is very clearly that it has always been contemplated and understood by the General Assembly and the public that material for the construction of highways was to be taken within their limits, and might be removed from any place where unnecessary to any place where its use was necessary, without regard to the rights of adjoining proprietors, if the necessity was a reasonable one, and the power was exercised in a reasonable manner. So, too, in relation to the manner in which highways should be maintained and repaired, and the places from which material should be obtained for that purpose, the statutes have been silent. In 1643 the towns were directed to appoint surveyors of highway to 'mend' them, and the surveyors were authorized to 'call out for that purpose every team and person fit for labor.' No provision was made as to the manner in which material was to be obtained, or the extent to which the ways should be mended. That statute was extended in the Code of 1650, and a preamble added as follows: "Whereas the maintaineing of highwayes in a fitt posture for passage, according to the severall occassions that occure, is not onely necessary for the comfort and safety of man and beast, but tends to the profitt and advantage of any people, in the issue, "It is thought fitt and ordered' etc. "This quaint preamble does not prescribe the manner in which highways are to be maintained, but it recognizes the principles which should govern, and have ever since governed, the legislation of the state and the officers of the towns in the maintenance of them. These principles contemplated their maintenance in a 'fit posture for passage according to the several occasions that should occur,' not only 'for the comfort of man and beast,' but for 'the profit and advantage of the people,' and therefore contemplated all such improvements in structure and grade as 'occasions' occurring in consequence of the advancement and growth of the country, and particularly of populous and growing cities, should make necessary. At a subsequent revision this preamble was dropped, probably because thought unnecessary, and because preambles were usually omitted when the laws were digested, and the statute was silent on the subject until the Revision of 1821, when it was remodeled, and the present provision inserted, requiring the towns to keep their highways 'in good and sufficient repair.' The same usage in relation to the taking of material from any part of the highways, and using it in any other place in the highways, without regard to any of the supposed rights "It seems clear to a majority of the court, upon this review of the statutes and usages of the state in regard to the making of highways, that the power of the officers of the town to remove material from place to place upon its highways, for the purposes of construction, improvement, or repair, and their right to do so are commensurate with the duties imposed and the limits of the highways, and paramount to the rights of adjoining proprietors, and that presumptively that right was paid for when the land was subjected to the easement. "If the foregoing propositions are true in relation to the officers and highways of a town, they are a fortiori true of the corporation and streets of the city of New Haven; for that city is not only a highway district, with all the powers possessed by towns, but by a special provision of its charter it is authorized to grade its streets. The power to grade is not simply the power to level one street so that its parts shall conform with each other, but the power to grade numbers of streets so that they shall conform to each other in a common grade. Such a construction of the charter is necessary to enable them to provide proper drainage and sewerage. No provision is made for the acquisition or disposition of material, and presumptively it was contemplated by the Legislature when they granted the power to grade, and by the board who assessed damages or benefits to the respondent when the street was laid out, that material excavated therein could, and probably would, be removed on some other street which required to be elevated to grade. "We think therefore that the power and right of the city to remove the soil in question to Martin street or Derby avenue, where it is reasonably required, are undoubted; that the right is paramount to the rights of the respondent; that presumptively he has been paid for the soil which has been or is to be taken, and has no just cause of complaint; and that, in attempting to remove that soil onto his own premises and deprive the city of it, after being apprised of their immediate intentions and necessities, and to the injury of the city, he was a wrongdoer, and should be restrained by injunction." While one expression in that opinion would seem to indicate a dissent on the part of some member of the court, it is subsequently stated, at the end of the opinion, that the other judges concur. But, be that as it may, we think the opinion is sound; and, as it deals with conditions substantially similar to those existing in this state, we cite and quote from it in support of the conclusion we have reached upon the question now under consideration. That question, in so far as our own and the researches of the counsel representing the respective parties disclose, has not been decided in this state. In fact, the Connecticut case, and Deniston v. Clark, 125 Mass. 216, are the only cases which we have found which are directly in point. The Massachusetts case is to the same effect as the Connecticut case; but it appears to have been controlled, to some extent, by certain statutory provisions not involved in the case at bar, nor in the Connecticut case. [4] 3. If it be contended that the doctrine announced in the Connecticut case is not applicable to that portion of this case which involves the right of the city of La Grange to remove gravel and soil from the streets abutting upon appellees' property for the purpose of improving a highway outside the limits of the city, we think a sufficient answer is that, under article 769 of the Revised Statutes of 1911, the city of La Grange was authorized to construct and maintain a an animal is injured by a passing train, the injury shall constitute prima facie evidence of though its right of way fence at one time innegligence on its part, a railroad company, closed a deep hole on the right of way, was under no duty to keep such hole inclosed for the purpose of preventing live stock from falling therein and was not liable for the death of a cow which fell therein after it had moved its fence so as not to inclose such hole. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1474, 1475; Dec. Dig. § 414.*] 2. RAILROADS (§ 411*)-INJURIES TO STOCKLIABILITY. fence at right angles to its road connecting A railroad company which constructed a with its right of way fence, which after it moved its right of way fence closer to the track served no purpose except to separate the fields tion to such adjoining owner or any one else of an adjoining owner, was under no obligato maintain such fence, and for its failure to do so was not liable to the owner of a cow which escaped from its pasture through such fence and fell into a hole. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. § 411.*] 3. RAILROADS (§ 411*)-CONDITION OF LAND -EXCAVATIONS. A railroad company which removed considerable dirt from its right of way, leaving a basin into which surface water flowed and washed a deep hole, was under no obligation to guard such hole to prevent persons or animals falling therein, as the excavation was lawful and the hole was caused by natural causes. Cent. Dig. §§ 1409-1450; Dec. Dig. § 411.*] [Ed. Note.-For other cases, see Railroads, Appeal from Fayette County Court; Geo. Willrich, Judge. Action by H. W. F. Meyer against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and rendered. Geo. E. Lenert, of La Grange, for appel pellee. street or roadway from the city limits to its lant. Edward H. Moss, of La Grange, for apwaterworks plant, and that it had the same power and authority in reference to that street or roadway that it had as to any street within the corporate limits. 4. For the reasons above stated, the judgment of the trial court, in so far as it restrains the city of La Grange, its officers and employés, from removing gravel, soil, and similar material from North Line street, is reversed and here rendered for appellant; but in all other respects that judgment is affirmed. Affirmed in part, and in part reversed and rendered. KEY, C. J. This suit originated in a justice of the peace court but was appealed to and finally tried in the county court, where the plaintiff obtained a judgment against the defendant for $125, and the defendant has appealed. The cause of action was predicated upon the fact that a cow belonging to the plaintiff fell in a deep hole in the ground and broke her neck. The hole referred to was on the defendant's right of way. About ten years prior to the trial, during an overflow of the Colorado river, the track and roadbed of the defendant were washed away from the approach to the bridge across the MISSOURI, K. & T. RY. CO. OF TEXAS v. river, and the defendant in repairing that MEYER. (Court of Civil Appeals of Texas. Austin. Nov. 19, 1913.) 1. RAILROADS (§ 414*)-INJURIES TO STOCKLIABILITY. There being no law in this state requiring a railroad to fence its right of way or inclose its track, the only statute on the subject merely declaring that when it has not done so, and injury removed considerable dirt from the right of way, leaving a cut or basin of some length which subsequently formed a ravine, into the upper end of which surface water flowed; and, as a result of the concentration of the flow of water at that place, a large hole, some 8 or 10 feet deep and 17 feet wide, was washed out, and it was into that hole *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series. & Rep'r Indexes that the plaintiff's cow fell and was thereby killed. The proof shows that the defendant formerly had its right of way so fenced as to include the greater portion of the ravine referred to and all of the hole in question within the defendant's right of way inclosure. However, about four years prior to the accident the defendant moved its right of way fence nearer to its railroad track and left the hole and all of the ravine outside of its right of way fence. The proof shows that the defendant at the time in question still had control of and had been maintaining a fence which extended straight out from its track and trestle to and beyond its fence parallel to its track. The fence referred to constituted the dividing fence between a pasture and a field which belonged to one William Hermes. The proof shows that the plaintiff was pasturing his cow in Mr. Hermes' pasture; that the cross fence referred to, which extended straight out from the defendant's trestle, got out of repair, so that stock could pass through it at a point near the ravine on the defendant's right of way but beyond and outside of the right of way fence; and that the plaintiff's cow passed through that place and went from there to where she fell in the hole. It seems that at that time there was no fence between the defendant's right of way and Mr. Hermes' field, but on account of the bluff formed by the north bank of the ravine there were only one or two places that the cow could have gone into the field, but of course she could have gone back into the pasture at the same place she got out of it. There was no proof that the cow was frightened by a passing train, or that the defendant did anything proximately contributing to its death, unless the failure to keep the fence repaired at the place where the cow got out of the pasture was the proximate cause of the injury. It was also shown that the hole referred to was surrounded by a considerable growth of vines and grass, which partially obscured its existence. its fence and leave the hole referred to outside of the fence which inclosed the track. [2] Also, and for the same reason, we think it must be held that appellant owed appellee no duty and was under no obligation to keep in repair the cross fence which extended beyond the fence which inclosed the track. Granting that appellant had constructed that cross fence so as to connect with its right of way fence as it originally stood, still, after the right of way fence was moved in nearer the railroad track, the cross fence which extended beyond the right of way fence served no purpose except to separate Mr. Hermes' pasture from his field, and appellant was under no obligation to the owner of the pasture, or to any one else, to maintain that fence; and, being under no such obligation, it was not guilty of negligence when it failed to do so. 1 Thompson, Neg. (2d Ed.) § 965; 29 Cyc. 442, 444; Railway Co. v. Oakes, 94 Tex. 155, 58 S. W. 999, 52 L. R. A. 293, 86 Am. St. Rep. 835; Padgitt v. Railway Co., 90 S. W. 67. In the case last cited the proof showed that the railroad ran through Mrs. Padgitt's farm, leaving her residence on one side and her pasture on the other; that she had a lane, fenced on both sides, leading from the house to the pasture; that the railroad had fenced its right of way but had put in the cattle guards on the right of way in such manner as that live stock could pass over; and that a horse belonging to Mrs. Padgitț passed over one of the cattle guards, went upon the track for a distance of about 100 yards to a bridge, and fell in the bridge and was injured. The court states that the cattle guard was so constructed as to form no obstacle to animals crossing over it. The trial court directed a verdict for the defendant, and upon appeal the Fourth Court of Civil Appeals said: "The animal was not injured through the locomotives or cars of appellee. The case of appellant is no better than if appellee had never inclosed its right of way across the farm. At best the evidence shows that appellee had its track in such condition that animals had free access to it. Appellee was not required to keep its track or bridges in such condition as not to injure animals that went upon the right of way." We fail to see any distinction in principle between that case and the case at bar. [1] The foregoing is substantially a correct statement of the material facts, all of which are established by uncontroverted testimony. Counsel for appellant contends, and we sustain the contention, that the facts referred to disclose no cause of action against appellant. There is no law in this state which requires a railroad to fence its right This case is readily distinguishable from of way or inclose its track, and the only stat- Railway v. Cluck, 99 Tex. 130, 87 S. W. 817, ute we have upon the subject merely de- relied on by counsel for appellee. In that clares that, when a railroad has not done so, case the railroad had leased a spring from and an animal is injured by a passing train, the plaintiff's father converted it into somethe fact of such injury shall constitute prima thing like a well and covered it over, and facie evidence of negligence on the part of was using it to obtain water for its engines. the railroad. Therefore it must be held that There was a pathway passing by it, which, to while, at one time, appellant had the hole the knowledge of the railroad, was in conin question inclosed within its right of way stant use by Cluck and persons at his resifence, it was under no duty to keep it so dence, which was near by. The covering over inclosed for the purpose of preventing live the well was washed away, and the railroad stock from falling therein; and from this negligently failed to replace it, and, as a it follows that it had the right to withdraw | result thereof, Cluck, the plaintiff in that case, who was visiting his father's house, while traveling the path in question during the nighttime, fell in the well and was injured; and it was held that the railroad owed him the duty of exercising reasonable care and diligence for the purpose of preventing such accidents. The case in hand is no such case as that. [3] Nor is this a case in which the owner of premises had dug a hole in the ground and left it in such condition as to constitute a pitfall into which persons or animals might unconsciously step and be injured; and therefore it is not necessary to consider what would be the law in such a case. Appellant had the right to make the excavation it did upon its right of way, and it is not claimed that any injury would have resulted to appellee's animal if conditions had remained as they were after the excavation referred to. The hole, which was subsequently formed by surface water being concentrated at a particular point and flowing into the excavation, was a condition brought about by natural causes and not by any act of the railroad, and therefore it was under no obligation to appellee, or any one else, to take any steps to prevent live stock from falling therein. For the reasons stated, the judgment of the trial court is reversed, and judgment here rendered for appellant. Reversed and rendered. BROWN et al. v. BRENNER et al. (Court of Civil Appeals of Texas. Galveston. Nov. 20, 1913. Rehearing Denied Dec. 11, 1913.) 1. APPEAL AND ERROR (§ 732*)—ASSIGNMENTS OF ERROR-REQUISITES. An assignment that the court erred in refusing to grant specified defendants' amended motion for new trial was too general to present any question for review. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.*1 2. DEEDS (§ 78*)—VACATION INCOMPETENCY GRANTOR - QUESTIONS FOR In suit to set aside a deed, evidence held to authorize submission to the jury of the question whether the grantor was mentally incompetent to make the conveyance at the time he signed it. [Ed. Note.-For other cases, see Deeds, Cent. Dig. § 648; Dec. Dig. § 78.*] 3. APPEAL AND ERROR (§ 742*)-ASSIGNMENTS OF ERROR-PROPOSITION-RELEVANCY. A proposition that the court erred in permitting certain witnesses to testify that in their opinion the grantor in a deed in controversy did not have mental incapacity to transact business, and in the witnesses' opinion he was not in his right mind when he executed the deed, was not germane to an assignment that the court erred in refusing to grant defendants a new trial because the evidence was insufficient to warrant a finding that the gran tor had not mental capacity when he executed the deed and therefore could not be reviewed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 4. APPEAL AND ERROR (8 760*) — REVIEW — BRIEFS-OBJECTIONS AND EXCEPTIONS. A ruling on admission of testimony cannot be reviewed where appellant's brief does not indicate that any objection was interposed to the testimony when offered and does not refer to bills of exception as having been taken to the court's ruling. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3095; Dec. Dig. § 760.*1 5. APPEAL and Error (§ 742*)-ASSIGNMENTS OF ERROR-PROPOSITIONS-APPLICABILITY. A proposition that, plaintiff having introduced several witnesses to show that the grantee in a deed in controversy had mental capacity when he executed it, it was error for the court to render a judgment canceling the deed but should have directed a verdict for defendants was not germane to an assignment that the court erred in refusing to grant defendants a new trial because the evidence was insufficient to warrant the jury in answering in the affirmative an interrogatory as to whether the grantees had notice of the grantor's alleged mental incapacity. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 6. INSANE PERSONS (§ 66*) - CONVEYANCE EXECUTION-CONSIDERATION-DUTY TO RE TURN. Where, in a suit to set aside a deed alleged to have been executed by an insane person, there was no evidence that he had any money at the time of his death except $125, which was the proceeds of rents of the property in controversy, and there was no proof that he purchased necessaries with the consideration nor that it was invested by or for him for the benefit of his estate or was still on hand, defendants were not entitled to a return of the consideration as a condition to canceling the deed. [Ed. Note. For other cases, see Insane Persons, Cent. Dig. 88 100-102, 104, 105; Dec. Dig. § 66.*] Appeal from District Court, Harris County; Charles E. Ashe, Judge. Action by W. F. Brenner and others Judgment against Carrie Brown and others. for plaintiffs, and defendants appeal. Affirmed. Heidingsfelders and Jas. Slyfield, both of Houston, for appellants. Van Velzer & Lewis, D. F. Rowe, and Leonard Doughty, all of Houston, for appellees. McMEANS, J. This suit was brought by appellee W. F. Brenner against Carrie Brown, O. Frosch, V. T. Watson, C. E. Heidingsfelder, and Camille Blue in the nature of a bill in equity for the purpose of securing the cancellation of a deed of conveyance of certain lots of land in the city of Houston, wherein plaintiff's father, Henry Brenner, was grantor and Carrie Brown was grantee, and to secure the cancellation of various instruments subsequently executed, whereby the title to the grantee from Henry Brenner was conveyed to appellants. Cancellation was sought upon the grounds that: (1) Carrie Brown was a fictitious person; (2) the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |