Austin McCarthy v. Petra Cabrera, 17 Tex. 629

Wheeler, J. The objection, that the verdict gives the plaintiff one vara more of the land than, according to the evidence she was entitled to, is not distinctly presented by the"assignment of errors. If raised at all by the record, it is in the ground assigned in the motion for a new trial, that the verdict is contrary to law and evidence.

But this general assignment would not be likely to suggest the present objection; and it would probably have escaped the attention of the Court, as it appears to have done the counsel for the appellee, that such a ground of error would be relied on, if it had not been particularly insisted on in the argument. We might decline to revise it, as not sufficiently specified in the assignment of error. But if well presented for revision, we do not think the objection maintainable.

If it had been proved conclusively, that the point, to which the measurement was made and found to be twenty-one varas from Commerce street, was the division line between the lots, it might have been otherwise. But the evidence of the witness, who profesess to have made the survey and measurement, is, that the place was pointed out to him as the line. He does not state that he knew where the line was. The place thus pointed out may not have been the true line ; it is not conclusively proven to have been such ; or to have been the same line of division spoken of by other witnesses.

This was a point to be fully established, before the measurement by the witness could be received as conclusive of the depth of the lot. Other witnesses, who, it is true, do not mention, particularly, their means of information, whether by actual measurement or not, say the depth of the appellant’s lot is twenty varas ; and that is what is called for by his deed. No doubt, the testimony of the witness, who shows that he had information by actual measurement, should control, if it were conclusively established that his measurement had its terminus at the true division line between the lots.

But that point is not so certainly established, as to entitle the evidence of measurement to a controlling and conclusive effect upon the finding of the jury. And as there was evidence in accordance with the verdict, we cannot say there was error in refusing a new trial on that ground. We do not think there was error in permitting the witnesses to be examined as disclosed by the bills of exception. In estimating the damages, it was necessary to ascertain the value of the use of the property, as it was situated.

For whether it was of greater or less, or, indeed, of any value, must depend upon its situation and locality, and surrounding circumstances. It was proper to take into the account its particular locality, and situation with reference to the adjoining proprietors. And if the manner in which adjacent property was improved, and occupied, gave to its use any peculiar, or extraordinary value, the plaintiff was certainly entitled to the benefit of it.

If its use was so necessary to the comfort and convenience of others, as greatly to enhance its value, the plaintiff was entitled to all the benefits and advantages arising from the enhanced value of her property, from whatever causes it may have arisen. The object of putting the questions to the witnesses in that form, was to ascertain the value of the use of the property as it was situated ; and this we think was proper.

In every such case, the question should be, not what would the use of the property be worth to those who had no use for it,—and it may be, had not and could not, have access to,it,—but what is it worth to those who have a use for it. And that is precisely what it was proposed, by the question put to the witnesess, to ascertain. It was proposed to prove that the property had a peculiar value on account of its situation. That value the plaintiff was entitled to claim ; and consequently it was proper to admit evidence of it. Finally, it is insisted that the damages assessed by the jury are excessive.

Upon this point, the evidence is not as satisfactory as could be desired. It, however, is evident, that the witnesses who placed the lower estimate upon the value of the use of the property, made their estimates on the erroneous basis of the value of such a piece of ground generally-, without regard to its peculiar situation, and its enhanced value on that account. Consequently their estimates were properly disregarded by the jury.

And though the evidence as to the particular and peculiar value of the use of this piece of ground, situated as it is,-is not very clear and certain, yet as it was sufficiently so to satisfy the jury and their finding did not exceed the estimate, which the testimony of some of the witnesses conduced to establish, we cannot say that the Court erred in refusing to set aside the verdict on this ground.

If the property is so necessary to the defendant, or others, as that they would give the estimated amount, rather than be deprived of its use, and were to contract with the plaintiff for it at that sum, it cannot be doubted, that the contract would be valid, and entitle the plaintiff to demand and recover the sum so stipulated. It will not be pretended that the defendant can defeat the plaintiff’s right by a wrongful taking and holding of the property, or that he is entitled to have the use and enjoyment of it for a less price,- because he acquired the possession by a" trespass, instead of a contract.

Upon the whole we are of opinion there is no error in the judgment, and it is affirmed. Judgment affirmed.