San Antonio & A. P. Ry. Co. v. Ruby

• Decision Date: 10 March 1891
• Citation: 15 S.W. 1040
• Parties: SAN ANTONIO & A. P. RY. CO. <I>et al.</I> v. RUBY <I>et al.</I>
• Court: Texas Supreme Court

15 S.W. 1040

SAN ANTONIO & A. P. RY. CO. et al. v. RUBY et al.

Supreme Court of Texas.

March 10, 1891.

Appeal from district court, Harris county.

O. T. Holt, for appellants. Hutcheson, Carrington & Sears, for appellees.

STAYTON, J.

This is an action of trespass to try title originally brought by John H. Ruby against the San Antonio & Aransas Pass Railway Company, to recover five acres of land in or near the city of Houston over which the railway company constructed and was operating its road. The property of the railway company having been placed in the hands of receivers on September 10, 1890, they were made parties defendant. In an answer filed after the receivers were made defendants it was alleged that since the institution of the action Ruby had sold the land to Hutcheson and Carrington, and it was further alleged that the company placed the improvements on the land before Ruby became its owner, and the right of Hutcheson and Carrington as well as the right of Ruby to recover damages for any matter accruing before their respective ownerships was denied. That answer was filed on October 25, 1890, and therein condemnation of a strip of land 50 feet wide and running diagonally through the lot was sought. Hutcheson and Carrington made themselves parties on November 5, 1890, and asserted their right to compensation if right of way over the lots should be condemned. The cause was tried without a jury, and resulted in a judgment in favor of Hutcheson and Carrington and in favor of Ruby for their use for the lot, but condemning so much of it as was asked by the defendants for right of way, and awarding to Hutcheson and Carrington $2,100 as damages or compensation for the land so taken. That Hutcheson and Carrington bought the land after the action was brought, was established, but they purchased before condemnation was asked, and the court found that Ruby was the owner of the land when the railway company first took possession of it, at which time the land was worth $100 per acre, and at time of trial worth $700 per acre if not occupied by the railway. No damages were awarded to plaintiffs other than such as the court found to be adequate compensation for the land actually condemned, and injury to the remainder for a part being used for the railway. The receivers pleaded a misjoinder of parties, which was overruled, and in this ruling there was no error. They may not have been necessary parties, but it cannot be said that they were not proper parties, and it seems to us that under given contingencies full relief to the plaintiff could not be given unless they were joined.

The court did not err in refusing to permit a vendor of Hutcheson and Carrington to state what sum they paid for the land, for the inquiry was as to the value of the land at time of trial, and not at some prior time. While the witness Byron could not state absolutely the value of the land, he was shown to be familiar with its locality and general surroundings, and well qualified to give an opinion as to its value. He stated that he had an opinion as to its value and gave it; and upon such a question the opinions of witnesses qualified to speak as to value are received. The court permitted witnesses to state the value of the land at the time of trial, and to state the depreciation in value of that part of the lot not condemned for right of way, by reason of the fact of such condemnation and the use to which the right of way was to be applied, and it is contended that the evidence should have been confined to value when the road was first constructed over the lot. This question was considered in the case of Railway Co. v. Cave, (Tex.) ante, 786, (decided at the present term,) in which it was held that the compensation to be made must be determined upon value at time of condemnation. We hold this to be the correct rule, under the constitution of this state, which provides that "no person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and when taken, except for the use of the state, such compensation shall be first made or secured by a deposit of money." Const. art. 1, § 17. The rule is believed to be universal that compensation must be estimated by facts existing at the time the land is taken, though there is some diversity of opinion as to whether this occurs when the...