Mo. Pac. R'y Co. v. Patterson

2 Wilson 713

• Court: Court of Appeals of Texas
• Decided: May 4, 1885
• Docket: No. 3271
• Status: Published

Opinion

Opinion by

Watts, J.

§ 808. Suggestion of delay; effect of; case stated. Appellee recovered judgment against appellant for $135 for injury caused by fire communicated from appellant’s engine to his grass, and the turf thereof. Appellee submits the cause on a suggestion of delay and prayer for damages. This opens the case as to all errors of record, whether assigned or not. [Batey v. Dibrell, 28 Tex. 172; Furlow v. Miller, 30 Tex. 28; Davis v. Marshall, 25 Tex. 372; Bradford v. Johnson, 44 Tex. 381.]

May 4, 1885.

§ 809. Damage to grass and turf; insufficient findings of fact to support judgment for. There is no statement of facts in the record. In his conclusions of fact the trial judge found that the grass on thirty acres of appellee’s land was destroyed by appellant’s negligence. The value of the grass he found to be $3.50 per acre, and the injury to the turf $1.50 per acre. There is nothing in the findings of the court showing the use or purpose to which this land had been devoted. Nor does it appear that the land was inclosed. In R. R. Co. v. Tippit, ante, p. 710, we held that the true rule for measuring the damages in this class of cases, considering the purposes to which the land had been devoted by the owner, was the difference in the value of the land immediately before and immediately after the fir©. In the application of this rule the use to which the land was devoted must, be made to appear, and because this is not made to appear in this case, the judgment must be set aside.

Reversed and remanded.