water the same during the time of conveyance and until the same is delivered to the consignee or disposed of as provided by law, so that in this respect the charge correctly followed the statute. But in respect to the company's duty with reference to pens, the charge is not the law. The effect of the charge is to impose upon the appellant the absolute duty of furnishing pens large enough that appellee's cattle would receive no injury from being confined therein. There is no statute within our knowledge imposing this duty upon railway companies, and, indeed, this court has held to the contrary of the proposition in Ft. Worth & R. G. R. Co. v. Cage Cattle Co., 95 S. W. 705, where a charge very similar to the one above quoted was condemned. See, also, Casey v. St. L. & S. W. Ry. Co., 37 Tex. Civ. App. 49, 83 S. W. The true test seems to be whether the pens under all the circumstances were such as a person of ordinary prudence would have provided. The company is not under the absolute duty of guaranteeing cattle against injury by reason of insufficient pens.

20.

We have disposed of this question as though appellee's pleadings authorized the submission of this issue of appellant's liability; but it is by no means certain that such is the case, and on another trial it might be well to amend in this respect, if this issue is again submitted.

SPEER, J. This is a grass-burning case, prosecuted by appellees against appellant in the county court of Eastland county, in which there was a recovery in the sum of $100. In the course of his instructions to the jury the trial court used the following language: “If from the evidence you believe that the defendant failed to equip its engines, from which the sparks escaped which caused the fire, with the most improved spark arresters in use, or that the employés of the defendant operating said engines were guilty of negligence in failing to use ordinary care to prevent the escape of sparks, then and in that event the prima facie case above mentioned is not rebutted." The court had previously instructed the jury that the escape of sparks of fire from appellant's engine setting fire to appellees' grass, would constitute a prima facie case of negligence. The charge quoted is not the law. It erroneously imposed upon appellant the absolute duty of equipping its engines from which the fire escaped with the most improved spark arresters in use; whereas, the measure of its duty in that respect was to exercise ordinary care to provide its engines with such device. Tex. Cen. R. R. Co. v. Qualls (No. 6,204, not yet officially reported) 124 S. W. 140; St. Louis S. W. Ry. Co. v. Crabb, 80 S. W. 408, and authorities there cited. The error is a vital one, and calls for a reversal of the case. The charge is also open to the criticism that it assumes that sparks did escape from appellant's engines and set fire to appellees' grass; and, while we have not taken the time, in view of the necessary reversal, to examine the facts to ascertain if this error could be held to be [Ed. Note. For other cases, see Railroads, harmless, on another trial it is as well for Cent. Dig. §§ 1668-1671; Dec. Dig. § 454.*] the charge to omit this assumption, and sub2. TRIAL (§ 191*) — INSTRUCTIONS-ASSUMP-mit the question for the finding of the jury.

TION OF FACTS.

The court's definition of negligence could hardly be held to be affirmatively erroneous, yet the charge could as easily and more safely follow the approved form.

For the error discussed, the judgment is reversed, and the cause remanded for an

other trial.

TEXAS & P. RY. CO. v. WOOLDRIDGE
& HAMBY.
(Court of Civil Appeals of Texas. Feb. 26,
1910.)

1. RAILROADS (§ 454*) - FIRES - SPARK AR

RESTERS.

It is not the duty of a railroad to equip its locomotives with the most improved spark arresters, but the measure of its duty is to exercise ordinary care to provide its engines with such devices

A charge that, if defendant failed to equip its engines, from which sparks escaped which caused the fire, with spark arresters, etc., is open to the objection that it assumes that sparks did escape from defendant's engines.

Appeal from Eastland County Court; E. A. Hill, Judge.

Action by Wooldridge & Hamby against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed, and cause remanded for new trial. Earl Conner, for appellant. J. J. Butts, for appellees.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 420-431; Dec. Dig. § 191.*]

3. RAILROADS (§ 481*)-FIRES-ADMISSION OF EVIDENCE-REBUTTAL.

Where, in an action for fire set by a railroad's engine, the defendant introduces evidence to show that all its engines were equipped with the most improved spark arresters, evidence of other fires caused by other engines along the right of way was admissible as rebutting defendant's evidence.

There was no error in permitting testimony that other engines belonging to appellant had thrown fire along and near appellant's right of way at other times, since such proof tended to rebut appellant's evidence to the effect that all of its engines were provided with the same spark arrester, which is described as being the latest and most up to date in use in the country. Tex. Cen. R. R. Co. v. Qualls, supra; M., K. & T. of Texas v. Dawson, 109 S. W. 1110.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*]

more years up to 10 years ago. Numbers of, be sufficient water for the common use of people have been engaged in that business during the time I have known it. They would float the timber down those streams in the Sabine river and on to Orange after it was gotten out of the woods. I have bought thousands of logs from up there during the time I have been here. I bought them up to, I think, about 1898. Since that time I have been out of the cypress business."

trade and commerce during all seasons of the year. It must, however, as the result of natural causes, be capable of valuable floatage periodically during the year and so continue long enough at each period to make it susceptible of beneficial use to the public." In Gould on Waters, § 109, it is said: "In this country, where this question is more important than in England, notwithstanding the conflict respecting the title to large freshwater rivers, the authorities agree that streams which in their natural condition are only useful for rafting purposes during the whole or a part of each year, are highways for that purpose and that the title of the riparian owners to the beds of such streams is subject to this right of passage."

Under the rules announced in these authorities the testimony before set out is sufficient to sustain the finding that both Old river and Tiger Bayou are navigable streams. It follows that appellant's obstruction of the use of said streams by appellee as a public highway was wrongful, and rendered appellant liable for any damages sustained by appellee which was a proximate result of such obstruction.

The witness Smith testified: "I am acquainted with Old river and Tiger Bayou and the country surrounding them. I have gotten out cypress timber all over that swamp all the way from 1892 on up. I have gotten a pretty good amount of cypress timber out of there. We have operated in there about 23 years. Old river and Tiger Bayou are capable of floating cypress logs into the Sabine river. They have been used for that purpose during all the time I have known them. I came to Orange in '71. I never floated out timber until about two years afterwards. I have continuously floated it since that time. It is still capable of floating logs. Those two streams have been used by people in that neighborhood for bringing out cypress timber during the last 20 years."

The question of what is a navigable stream in which the public have a right of easement has been often before the courts and the decisions on the subject are not entirely harmonious. It is well settled, however, that the common-law rule which limits navigable streams to those in which tide ebbs and flows does not obtain in the United States, and the controlling question in determining whether a particular stream is a navigable public highway is its capacity for such use. In the Montello Case, 20 Wall. 432, 22 L. Ed. 391, it is said by the Supreme Court of the United States that the capability of use by the public for purposes of transportation affords the true criterion of the navigability of a river rather than the extent and manner of that use. If it be capable in its natural state of being used for the purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway. Mr. Cooley, in discussing this question, says: "If a stream is of sufficient capacity for the floating of rafts and logs in the condition in which it generally appears by nature, it will be regarded as public, notwithstanding there may be times when it becomes too dry and shallow for that purpose."

In the case of Lewis v. Coffee County, 77 Ala. 190, 54 Am. Rep. 55, the court says: "It may be conceded that a stream of sufficient depth and width in its natural state to be used for the transportation of timber or logs, though it may not be technically navigable, is subject to the public right of user. We do not understand that, to constitute a

Appellant does not, and cannot under the laws of this state, claim any private ownership or right in the bed of said streams. Our statute declares that a navigable stream is one 30 feet in width, and that in the survey of public lands for patent the lines of the survey shall not cross such streams. Article 4147, Sayles' Ann. Civ. St. While the designation of streams 30 feet wide as navigable streams in the purview of this statute does not, of itself, make such streams navigable public highways, the fact that the bed of the streams cannot become private property would, we think, give the public, or any portion thereof, a right to their use as navigable public highways whenever they have sufficient water for such purpose, even if the evidence as to their capability as navigable public highways might not be sufficient to impose an easement of this kind over private property. City of Austin v. Hall, 93 Tex. 591, 57 S. W. 563.

There is no merit in the contention that the court erred in allowing plaintiff to recover the value of his time lost in caring for his logs during the time they were kept in Old river and Tiger Bayou by reason of the wrongful obstruction of said streams by the defendant. It is true that upon this claim for damages the correct measure of damage was the reasonable expense of protecting and caring for the timber during the time it was unlawfully detained. Appellee testified that in order to protect his timber he had to stay near it at all times and that the value of his time consumed in watching and caring for his logs was $3 per day. It being necessary to so guard the timber, the value of appellee's time in guarding it should be regarded

red in caring for and protecting it. Orange Lumber Co. v. Thompson, 113 S. W. 563.

It would serve no useful purpose to discuss appellant's various assignments of error in detail. All of them have been duly considered, and none, in our opinion, should be sustained.

the statement that the petition did not authorize such recovery. The petition as copied in appellee's brief alleges the loss of the 14 logs in Tiger Bayou. Under these circumstances in our judgment rendered in this case on February 24th, we reversed this finding of the trial court and rendered judgment for appellee for the value of the 14 logs lost in Tiger Bayou in addition to the 36 lost in Old river. That judgment will be set aside upon our own motion, there being no pleading to support a judgment for the 14 logs so lost. We are at a loss to understand how this matter could have been overlooked by the trial judge and the counsel for appellant, and why it is that the petition copied in appellee's brief contains a material allegation entirely wanting in the petition appearing in the record.

From what we have said, it follows that the judgment of the court below should be reversed upon appellee's cross-assignment, and judgment here rendered in his favor for the value of the 36 logs lost by him and for the value of the full time consumed by him in caring for his logs while they were held by the obstruction of the streams by appellant, and it has been so ordered. Reversed and rendered.

Appellee by cross-assignments complains of the judgment of the trial court in that it does not allow him damages for the value of the full time lost by him in watching his logs while their transportation was wrongfully obstructed by appellant. We think this complaint is just. The trial court deducted 21 days from the time so lost by appellee, on the theory that appellant had the right to obstruct said stream for a reasonable time, and that under the circumstances shown by the evidence 21 days was a reasonable time to permit appellant to continue such obstruction. This conclusion is not sound. If the obstruction of the streams was caused by the reasonable use thereof by appellant for purposes of navigation, its right to use the streams for that purpose being equal to that of appellee, the latter could not complain of the obstruction caused by such use by appellant. But this was not the cause of the obstruction of the streams. They were not being used as a public highway by appellant for the transportation of its timber, but as a storage place, and when a right of way was demanded by appellee it was appellant's duty to grant such request forthwith, or at least without unnecessary delay; and counsel for appellant admit in their brief that the boom could have been opened and appellee given access to Sabine river in an hour after such demand was made.

GULF, C. & S. F. RY, CO. v. BENNETT. (Court of Civil Appeals of Texas. Feb. 19, 1910. Rehearing Denied March 12, 1910.) 1. RAILROADS (§ 443*)-INJURIES TO ANIMALS

EVIDENCE-SUFFI

ON OR NEAR TRACKS
CIENCY.

In an action for the death of a mare killed by a railroad train, evidence of the negligence of the railroad company's employés held insufficient to support a verdict for plaintiff.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.*] 2. RAILROADS (§ 441*)-INJURIES TO ANIMALS ON OR NEAR TRACKS-EVIDENCE-BURDEN OF PROOF.

Where plaintiff's mare was killed within defendant's switch limits at a certain town, and at a place where public policy prevented the fencing of the tracks, the burden was on plaintiff to establish negligence by defendant which proximately caused the death of the mare.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.*] 3. TRIAL (§ 260*)-INSTRUCTIONS.

Appellee also complains, under an appropriate cross-assignment, that the court erred in refusing, on the ground that Tiger Bayou is not a navigable stream, to allow him to recover the value of the 14 logs lost by him in said stream. From what we have before said it follows that the trial court erred in holding that Tiger Bayou is not a navigable stream, and in refusing, on that ground, to give appellee judgment for said 14 logs. But the judgment in this respect cannot be changed because appellee's petition does not ask for recovery of the value of said logs. As shown by the petition before set out, appellee only claims to have lost 36 logs, and the court gave him judgment for the value of that number of logs. The evidence shows that appellee had 152 logs in these streams when the use of the streams was obstructed by appellant, and that because of such obstruction he lost by sinking 36 logs in Old river and 14 in Tiger Bayou. The case was argued orally before this court, and appellee's cross-assignment under which he insists that the judgment of the court below should be rendered in his favor for the value In an action for the death of a mare struck of said 14 logs was not met by appellant with | by defendant's train, the fact that the operatives

In an action for the death of a mare struck by defendant's train, where the court assumed in his charge that before plaintiff would be entitled to recover he must show negligence of defendant, it was proper to refuse requested charges that the law did not require fencing at the place where the mare was killed, and that plaintiff must show some act of negligence proximately causing the injury before he can recover. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]

4. RAILROADS ($ 447*)-ACTION FOR INJURIES TO ANIMALS ON OR NEAR TRACKS — EVIDENCE.