Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-05-06

Of the record there is found no ruling of
which appellants can complain. The fact
that one Of the deeds appears to be dated
on the day after II was acknowledged was
doubtless clerical error, and WAS no
ground for exclu ing 1t. Affirmed.
Gaines, Justice.
Missouri Pacific Railway Company vs..
T. Z. Cornwall, Tarrant county. Corn
wall sued the company for damages for
negligence In transporting ninety-nine
beeves from Colorado, Tex, to Chicago;
the plaintiffs case, as made by the plead
ings and evidence, was the refusal Of the
compSny's employees to allow the cattle
to be watered at Wbitesboro and Sedelia;
both were regular feed stations. and at
both the trains were late and the cattle
suffering from heat and thirst,
and r. quest was made at both places for
facilities for watering the cattle. The
heat was intense and the cattle were fat !;
loss was estimated at 100 pounds per
head, and the price WAS SIS each. The
defendant relied on shipping contract
signed by the parties exempting Company
from liability for delay in transportation,
and making 1t q prerequisite to suit that 8
claim for damages be verified by affidavit.
TIE court disregarded the contract as
affecting the right to recover. Held:
That the effect of the contract requiring
notice and for exemption from liability
from negligence have been settled
by this court adversely to the company's
right since the trial of this case 81
Tex. l66, R. R. Co. VS. Harris). The
verdic. was not excessive under the testi-
mony. Affirmed. Walker, Justice.
Harris ct al vs. Spence, Tom Green
county. Spence sued Lawhous, Kennon,
NJ. K. Fairfield, h. C B.rfeld, L.
B. Harris, j N. Upton, J. W. Bsrfield,
aud A j. Rogers on $4,000 note given to
Rsiney and endorsed to Spence, the
note was Joint and several. The assign
ments Of error attack the action of the
court in excluding the testimony Of q
witness and in refusing to allow appel
lants to withdraw the case from the trial
in order that they might amend. Held /:
That in the absence of statement OF
facts, and it not being shown that the ex-
cluded testimony was relevant to the
plesdings, as they are OF record and ma
terial to the defendants case as made,
the judgment cannot be reversed
Affirmed. Walker. Justice.
The State of Texas VS.. Charles Good
night; appeal from Donley. This Is ar
application by the state for s mandatory
IN JUNCTION to compel the removal OF
certain Enclosures from around certain
public lands of the state, and to restrain
the construction of any additional fences
A general demurrer was interposed AND
sustained, AMI the petition dismissed
The defendant had practically inclosed
for pastursge over 60, 900 acres of school
lands, and over IA 900 acres of un-
appropriated public domain, according to
the allegation of the petition; and it is
alleged that where the fences are
not contiguous, the Enclosure Is guarded
by line riders or other effective manner
that said Enclosures prevent the use OF
the public lands 80 inclosed AS commons,
for grazing purposes by the Inhabitants
of the state; that such Enclosure greatly
interfered with the driving Of stock to
market by the people of the state, and
also oostructed public travel; that such
Enclosure WAS contrary to public policy
and forbidden by the act OF February z,
1884 Held: That in so far as the in
closures interfered with the sale or lease
| Of the public lands, the petition shows an
injury to the public as an aggregate body
they affect all alike; this Is an
obstruction of q right which the state
might have waived before the act of Feb
ruary Z, 1884, but that since that time it
becomes the duty of the public officers to
remove by legal proceedings. In so far
as the Enclosure obstructs the right Of
common in the public lands, an the NOV
ing Of cattle to market and their passage
from one part of the country to another,
1t is an Interference with individual rights
in public property. Whether viewed IS
wrong to the body polite or an infringe
ment of the privile es of the citizens, is
nuisance subject to be abatsd st the suit
of the state, and the injunction sought is
the proper remedy. Reversed and re-
handed Gaines, j.