San Antonio & Aransas Pass Railway Company v. Arthur Burns, et al., 99 Tex. 154

BROWN, Associate Justice. Certified question from the Court of Civil Appeals for the First Supreme Judicial District. The statement and questions are as follows: “Appellees brought this suit alleging that they were owners of land lying on each side of the defendant railway company’s right of way.

That the defendant company had permitted Johnson grass to go to seed upon its right of way and had negligently permitted it to be communicated to plaintiffs’ land to their damage, for which they prayed as well as for the penalty prescribed in the act of the Legislature of April 18, 1901, commonly known as the Johnson Grass Statute. “At the trial plaintiffs in open court abandoned their action under the statute and sought to • sustain a recovery under the rules of the common law, but they made no change in their pleading. “They recovered a judgment and the defendant company has appealed to this court.

The case is now pending before us on rehearing. “The facts are that plaintiff is the owner of cultivated land lying on each side of defendant’s right of way. The defendant is a railway corporation. It has for years permitted Johnson grass to mature and go to seed on its right of way.. It was not placed on the right of way by the company’s procurement, and though it has been communicated to appellees’ lands to their damage this has not been due to the actionable negligence of the company unless the statute be applied.

The appellees have passively permitted the grass so communicated to their land to mature and go to seed thereon and defendant pleaded and urged that fact as a defense to the suit. “We reversed the judgment of the trial court on the ground that the undisputed proof showed that appellees had no action .at common law.

We remanded the cause, however, on the ground that the facts would sustain the statutory action for damages. “In view of another trial we construed the statute relating to the defense to such a suit and held that if the appellees had simply allowed to go to seed upon their land the grass communicated by the wrong of the defendant it would constitute no defense to the action under the statute. “We respectfully certify for your decision the following questions: “First.

Plaintiffs having pleaded and proved a case which would have justified a judgment under the statute, but for some reason having waived their rights thereunder and induced the court to render a judgment in their favor upon another theory, and the undisputed proof showing no right to a judgment except under the statute, should this court have reversed and rendered the judgment instead of reversing and remanding ? “Second.

Did this court err in holding that appellees might recover under the provisions of the statute notwithstanding proof that Johnson grass communicated to their land from seed from the company’s right of way had been permitted to mature upon their premises ?” ' To both questions we answer, that the facts stated show that appellees have no right of action under the statute referred to and the Court of Civil Appeals should have rendered judgment for the appellant. The first

section of the act declares it to be unlawful for a railroad company to permit Johnson grass to mature or go to seed on its right of way. The appellees’ claim is based upon the following

section of that act: “Sec. 2.

If it shall appear upon the suit of any person owning, leasing or controlling land contiguous to the right of way of any such railroad or railway company, or corporation, that said railroad or railway company, or corporation has permitted any Johnson grass or Russian thistle to mature or go to seed upon their right of way, such person so suing shall recover from such railroad or railway company or corporation, the sum of twenty-five dollars, and any such additional sum as he may have been damaged by reason of such railroad or railway company or corporation permitting Johnson grass or Russian thistle to mature or go to seed upon their right, of way.

Provided, any owner of land, or any person controlling land contiguous to the right of way of any such railroad or railway company, who permits any Johnson grass or Russian thistle to mature, or go to seed upon said land shall have no right to recover from such railroad or railway company as provided for in this act.” (Laws 1901, p. 383.) The facts show that the appellees are owners of land contiguous to appellant’s right of way on which Johnson grass was permitted to mature or go to seed, and are entitled to maintain this action under the above provision of that statute, unless they are embraced in the terms of the proviso.

The language, “any owner of land contiguous to the right of way,” etc., used in the proviso, is broad enough to embrace all persons who own land contiguous to the right of way and who permit Johnson grass to go to seed thereon without regard to the means by which the grass was communicated to that land. The policy of the state in enacting the law was to prevent the spread of Johnson grass, and in support of that policy it saw fit to deny an action under that law to any one who should permit the pest to be propagated on his premises. We are unable to see any sound reason for limiting the terms of the law.

An inspection of the act suggests to our mind a serious question as to the constitutionality of that portion of the law which gives a right of action for damages to the owner of contiguous land, because the subject of damages is not mentioned in the caption of the act. The question is not submitted by the Court of Civil Appeals and we do not pass upon it, although it might be regarded as embraced in the second question propounded.