I. & G. N. R. R. v. Saul

2 Wilson 612

• Court: Court of Appeals of Texas
• Decided: May 13, 1885
• Docket: No. 3434
• Status: Published

Opinion

Opinion by

White, R. J.

§ 698. Pasturage; destruction of, by fire; measure of damage ordinarily; case stated. Saul sued appellant to recover $1,000 damages for the destruction by fire, communicated from appellant’s engine, of the grass upon three hundred and eighty acres of his land, which he used solely for pasturage, and fifty panels of his pasture fence. Damages for the destruction of the grass laid at $950, and for the fifty panels of fence at $50. He recovered judgment for the full amount claimed. Held, in cases of this character, when not aggravated, the rule is, that the relief must be confined to compensation, and compensation for the loss actually sustained is the measure of the recovery. [R. R. Co. v. Joachimi, 58 Tex. 456; Galveston Oil Co. v. Malin, 60 Tex. 645; W. & W. Con. Rep. §§ 1127, 1139; 1 Sutherland, Dam. 173.]

May 13, 1885.

§ 699. Excessive judgment. The evidence was that appellee, by reason of the destruction of his grass by fire, was deprived of the use of his pasture eight months; that pasturage such as his, was worth two cents per day per head of cattle, or sixty cents per month, or $7.20 per year, and that it required three or three and one-half acres of such pasturage to maintain one head of cattle for one year. This being the evidence, a mathematical proposition will demonstrate the amount of damage. 'If one cow would eat the grass on three and one-half acres of land in twelve months, how many cattle would eat the grass on three hundred and eighty in the samé time? Answer, a fraction over one hundred and eight head. If it was worth $7.20 to pasture one head of cattle twelve ■ months, it would be worth $4.80 to pasture it eight months. And to pasture one hundred and eight head at $4.80, would amount to $518.40; and this amount and no more is what appellee is entitled to under the evidence for his pasturage. Add to this the value of the fence destroyed, $50, and the judgment should have been for only the sum of $568.40. This is the sum appellee is entitled to recover under the most favorable aspect of the evidence, and because the judgment rendered is excessive it is reversed, and judgment is here rendered in favor of appellee for said sum of $568.40 and all costs, except the costs of this appeal, which are adjudged against appellee.

Reversed and rendered.