of land and other property, without incurring any other or different liability, except as to extent of damages, than that of a company which, under like circumstances, has constructed its road-bed and culverts in strict conformity with the wise, recognized, and approved methods of railroad building. We do not concur in this view. The decisions of this court above cited, as we understand them, go to the length of holding that all special damages, present and prospective, to the owners of lands, resulting, or to result, from properly constructing, maintaining, and operating a railroad under the laws of this State, constitute, as to each land-owner, one single, indivisible cause of action, which may be enforced under the eminent domain Act or any other appropriate form of action. As a corollary of this doctrine, these cases further hold, that where, after such right of action has once accrued, the owner of land thus injured conveys it to another, the latter can maintain no action for any damages he may subsequently sustain which would have been anticipated and allowed as prospective damages in any suit which his grantor might have brought in his own name. But this court has never held, nor is it prepared to hold, that a railroad company is not liable for damages resulting from its negligence, either in the construction, maintaining, or operating its road. To do so would be to introduce an anomaly in the law of this State, and offer a premium for negligence and a wilful disregard of duty. A railroad company cannot take, even by making compensation, more land than is reasonably necessary for the purposes of its road. This is universally conceded. The same principle must be applied to the damaging of property; for to permanently damage it is practically taking it, to the extent to which its uses are impaired, though not a taking in the limited sense in which that term is used in our statute.

by land-owner

Public health and convenience, as well as the positive law of the State, alike demand that railways leading over natural streams and drains should, by means of efficient and substantial culverts or otherwise, be so constructed as to admit the escape of accumulating waters through them in times of high water as well as low. But experience shows that even these precautions, which the law requires to be observed, Same. Recovery are often not sufficient to entirely protect adjacent for injury. property-owners; hence the Constitution of the State has expressly provided for compensation in such cases. But the providing of such compensation for unavoidable injuries to property was clearly never intended to license a company to overflow vast bodies of land which might be fully protected by the building and maintaining proper culverts. Now, in a case of this kind, where the company commences operating its road without

having built such culverts, or provided some other efficient means for the escape of the waters, is it thereby relieved of the duty of doing so altogether? To say this is to assert one may discharge a legal duty by utterly disregarding it, which is simply absurd. To maintain an embankment of a road in that condition is not only a violation of a public duty, but is a direct invasion of the private rights of the owners of the lands thus constantly menaced by overflows which could never reach them if the road-bed were properly constructed. To the suggestion that the company may be compelled to pay for this constant menace, and consequent depreciation of the value and use of the land in times of overflows, it is sufficient to say that he is under no obligation to submit to a partial loss which could be avoided by the performance of a legal duty that the company owes to him. It is, in effect, forcing one to sell his property under the forms of law, in the absence of any public necessity justifying it. The remedy is, to compel the company to properly construct its road, and, until that is done, hold it responsible for all damages resulting from such failure of duty. There are decisions to the effect that where, in a case like this, the plaintiff has treated the injury as embracing prospective as well as present damages, and has offered proof in support of such claim, there can be no further recovery. These decisions rest upon the principle of estoppel, and are consequently sound; but no such question arises in this case. Yet it does not follow that because a land-owner, under the circumstances suggested, would be estopped from bringing a second suit, the company would be relieved of the public duty to properly construct and maintain its embankment; and it would therefore continue liable to all persons injured by its failure to do so, except such as might be estopped, in the manner we have stated, from enforcing a claim of that kind. Judgment affirmed.

SABINE & EAST TEXAS R. Co.

V.

BROUSSARD.

(Texas Supreme Court, Feb. 3, 1888.)

Construction of Road Negligence - Floods - Pleading. In an action to recover damages for injuries to land from floods caused by the negligent construction of a railroad, allegations of injuries to adjoining land not belonging to plaintiff are properly stricken out.1

Same-Death of Stock - Evidence — Opinion. — In an action to recover damages for the death of stock through a flood occasioned by defendant's negligence, a witness who has stated fully his means of information as to the loss of the stock, and shown that he was in a position to enable him to form an estimate, may give his opinion as to the number of dead animals, when no better evidence can be obtained.

Same Flood Injury to Pasture. A recovery of damages for injury to pasture through a flood caused by another's negligence is not limited to the value of the grass actually destroyed by the overflow; but it may be shown that the pasture was rendered incapable, for a time after the water subsided, of producing grass, as it did before the overflow.

Same Instruction - Repetition. Where the court have fairly instructed the jury as to the extent of the defendant's liability, and have informed the jury that defendant would not be liable if the overflow resulted from extraordinarily heavy rains and high water in the river, against which ordinary prudence would not have provided, it is not necessary for the court to repeat such instruction in several paragraphs bearing upon the defendant's liability.

Same Loss of Pasture- - Instruction — Yearly Value. In an action to recover damages for the loss of pasture, an instruction that the jury might find what, if any, was the value for one year, and then take the proportionate rate for the length of time which the evidence showed plaintiff was deprived of his pasture, is erroneous where it appears that the value of the pasture varied at different seasons of the year.

APPEAL from District Court, Hardin County.

Action by Moise Broussard to recover damages to plaintiff's stock, grass, and pasturage, sustained through an overflow caused by the negligent construction of the works of the Sabine & East Texas Railway Company. Verdict and judgment for plaintiff, from which defendant appeals.

O'Brien & John for appellant.

Tom J. Russell for appellee.

1 SURFACE WATERS. - For a full discussion of the doctrines as to surface waters, see ante, Philadelphia, W. & B. R. Co. v. Davis, 143, and note 148-151.

DAMMING BACK WATER, and preventing flow. - See ante, Olson v. St. Paul, M. & M. R. Co., 154; Sabine & E. Tex. R. Co. v. Wood, 190.

Objections to depositions.

STAYTON, J.-At the proper time objections were taken to three depositions offered by the appellee. The objection to each deposition was, that the certificate of the officer before whom it was taken did not show that the answers of the witness were signed and sworn to by him. As shown by the bill of exceptions, the captions and certificates to the depositions were as follows: Style of cause, and "Answers of Bradley Johnson to Direct Interrogatories in the above Suit," with no certificate of officer to them. The caption to his answers to cross-interrogatories was, "Answers to CrossInterrogatories." The certificate to same was as follows: "I, G. W. Paine, a justice of the peace in and for precinct No. 3, and ex-officio notary public of said county and State, do hereby certify, under my hand and official seal, that the foregoing answers were made, subscribed, and sworn to before me at Sabine Pass, Jefferson County, and State of Texas, on this fourth day of April, A.D. 1887. [Signed by the officer.]" The caption to the deposition of Cuniff was as follows: After style of cause, " Deposition of Thomas Cuniff, Witness for Plaintiff." The deposition was without signature of witness or certificate of officer to the direct interrogatories. The answers to the cross-interrogatories had no caption, save, beginning with the style of the cause, "Answers of Thomas Cuniff to Cross-Interrogatory 1st," and ended with a certificate of same form as the one to B. Johnson's deposition; to wit, "That the above and foregoing answers to the direct and cross interrogatories were made, subscribed, and sworn to before me at," etc. And the said deposition of Jack Johnson, after the style of the cause, had this further caption: "Answers of Jack Johnson, Witness for Plaintiff, to Direct and Cross Interrogatories." The direct interrogatories were signed by the witness. There were no answers to the cross-interrogatories, and the certificate was in the same form as the foregoing: "That the above and foregoing answers were made, subscribed, and sworn to before me at," etc.

The statute declares that "the officer shall certify that the answers of the witness were signed and sworn to by the witness before him." Rev. St. art. 2229. This must be substantially complied with, or a deposition should be excluded, on motion made at the proper time. Do the certificates before us show the facts required by the statute to be shown? They are all so nearly alike, that the consideration of one will dispose of all. Where it is apparent that the caption is intended as a part of the officer's certificate, it doubtless may be so considered; and if it clearly appears from that, taken with the certificate at the conclusion of a deposition, that the law has been complied with, that is sufficient. That which precedes the answers which are claimed

to have been those of Bradley Johnson does not show that he signed them or swore to them; and, if there be evidence that those things were done by the witness named, this must appear from the officer's certificate which follows the deposition. The only way in which it can be known that what appears to be the answers of a witness, taken through interrogatories and a commission, within the meaning of the law, are such answers, is by the certificate of the officer to the facts that the answers of the witness were signed and sworn to by the witness before him. That which is thus verified becomes evidence; but no statement made by the officer that matters appearing as the answers of a witness are his answers, which does not show that they became so by the facts that the witness signed and swore to them before the officer, can be received. If we take what is stated in the caption to the deposition of Bradley Johnson, and attach to it the certificate of the officer which follows, it will stand thus: "Answers of Bradley Johnson to Direct Interrogatories in the above Suit. I, G. W. Paine, a justice of the peace in and for precinct No. 3, and ex-officio notary public of said county and State, do hereby certify, under my hand and official seal, that the foregoing answers were made, subscribed, and sworn to before me at Sabine Pass, Jefferson County and State of Texas, on this fourth day of April, A.D. 1887." From this it may be suspected that the answers were signed and sworn to by Bradley Johnson; but this is not enough. It must appear through the officer's certificate that this is true, or the deposition should be rejected. Thompson v. Hale, 12 Tex. 139; Chapman v. Allen, 15 Tex. 278; Patton v. King, 26 Tex. 687; Trammell v. McDade, 29 Tex. 360. The three depositions objected to should have been rejected; and, as the evidence was material, the judgment will have to be reversed on account of its admission.

to overflow of adjoining

There are many assignments of error; and, in view of the further disposition of the case, we deem it proper to notice some of them. There were many exceptions taken to the petition, which were overruled. The petition was Averments as unusually full in its statement of the facts from which it was claimed the liability of the defendant arose, lands. and of the facts evidencing the extent of the injury received by the plaintiff; but this was notim proper, although it was, to a given extent, practically a statement of the particular facts which the plaintiff proposed to prove, more minutely made than was absolutely necessary. Averments as to the overflow of lands adjoining those of the plaintiff, but belonging to other persons, could have no bearing on the questions at issue between the parties to this action, and should have been stricken out on exception. The other exceptions to the petition were properly overruled.