Harris v. Santa Fé Townsite Co.

• Citation: 125 S.W. 77
• Parties: HARRIS v. SANTA F&#201; TOWNSITE CO. et al.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 14 January 1910
• Court: Court of Appeals of Texas

125 S.W. 77

HARRIS v. SANTA FÉ TOWNSITE CO. et al.^†

Court of Civil Appeals of Texas.

January 14, 1910.

Rehearing Denied February 10, 1910.

Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Action by Will Harris against the Santa Fé Townsite Company and others. From a judgment dismissing the petition on sustaining a general demurrer thereto, plaintiff appeals. Affirmed.

Smith Crawford & Sonfield, A. L. Davis, and J. D. Campbell, for appellant. Fisher, Sears & Sears and Andrews, Ball & Streetman, for appellees.

PLEASANTS, C. J.

This suit was brought by appellant against the appellees, Santa Fé Townsite Company, the Houston Printing Company, W. W. Fortenberry, and E. J. Eyres, to recover damages for certain alleged libelous publications concerning plaintiff and his wife which appeared in the Houston Daily Post on September 1, September 3, and September 11, 1906.

After the formal allegations giving names, domicile, and residence of defendants, the petition alleges, in substance, that the defendant townsite company is the owner of all the land surrounding the railroad station at the town of Silsbee, in Hardin county, and that all of the business houses and residences in said town are situated on the land of said company and owned by it, and said defendant was therefore able to control the occupancy and rental value of all the buildings in said town which contains about 3,000 inhabitants; that prior to the publications complained of a new townsite containing about 50 acres of land was platted and laid out by parties adversely interested to said defendant, which new townsite was called "South Silsbee" that the establishment of said new town and the moving thereto of plaintiff and his family and others engendered bitter hostility towards plaintiff and the other inhabitants of said new town on the part of said defendant, and that for the purpose of harassing and annoying plaintiff and the other inhabitants of South Silsbee, and preventing the growth of said town defendant, who owned the vacant land lying between said town and the town of Silsbee, caused the same to be fenced, which fence it is alleged crossed a public road leading from South Silsbee to the town of Silsbee, and thereby the residents of South Silsbee were cut off from the only way they had of reaching said town of Silsbee where all the public conveniences and places of resort, as well as the railroad machine shops, where most of the men who lived in South Silsbee worked, were situated; that prior to the publications complained of the defendant townsite company and W. W. Fortenberry, its manager, and E. J. Eyres, its secretary, as officers of said company and in their individual capacity, declared and notoriously circulated and published that the fence before mentioned had been unlawfully cut by persons other than its owners, and in such manner as to constitute such cutting a felony under the laws of this state.

The portions of the publications upon which the charge of libel is based in the petition, as set out in appellant's brief, are as follows:

"That the article published on the 1st day of September, 1906, is headed: `Fence Cutting —Women Do the Work While the Men Look On.' That in the body of the article appears: `The trouble at Silsbee caused by cutting of the fence on the enclosure of the Santa Fé Townsite Company and the Kirby Lumber Company by the women of the neighborhood (meaning thereby the plaintiff's wife and others) is still brewing.' `The special detective attached to the United States Marshal's office discovered nine women (meaning thereby plaintiff's wife and others) in the act of cutting fences, and armed with cans of kerosene, more trouble has ensued. The night following and in the ensuing night the fences were again cut, the destruction of property being on a more extensive scale than before. The cutting of the fences is presumed to be in retaliation for the refusal of the Kirby Lumber Company and the Santa Fé Townsite Company to permit the opening of a public road leading from South Silsbee to the Santa Fé Roundhouse.' `Detective John Weaver returned from Houston to-day and will go to Silsbee to-night. He states that after receiving the advice of counsel at Houston, it was found that there was no Federal statute covering the offense of wire cutting, but there was a rigid Texas statute making it a penitentiary offense to commit this act (thereby meaning that the plaintiff, his wife and others had committed a penitentiary offense and a felony). The charges are to be made against them (meaning thereby plaintiff's wife and others) under the State law, it is said, and the matter laid before the grand jury in the near future.'

"That the publication of the 3d of September, 1906, contains the following: `Information from Silsbee to-day is that the fences of the Santa Fé Townsite Company (meaning thereby the fences referred to in paragraph 1 of this petition) were again cut at that place last night after they had been repaired from previous devastation committed by the women (meaning thereby plaintiff's wife and others) of that section.' `The Santa Fé Townsite Company and the Kirby Lumber Company have not refused permission to these people to pass over their properties in order to get to the Santa Fé Roundhouse; but they have objected to the cutting down of their fences and to the opening up of a public road without due process of law.' (Meaning thereby that the plaintiff, his wife and others without justification had been cutting down said fences and attempting to open up a public road without due process of law.) `In describing his adventures around Silsbee, Weaver said that he concealed himself in the topmost branches of a tree; suddenly a band of nine women (meaning thereby plaintiff's wife and others) appeared on the scene, as he had expected, and began to assault the enclosure of the Santa Fé Townsite Company.' (Meaning thereby that plaintiff's wife and others began to cut and otherwise destroy the fences of the Santa Fé Townsite Company herein-before referred to.)"

In the publication of the 11th day of September, 1906, is the statement signed by E. J. Eyres, treasurer Santa Fé Townsite Company, which said statement is set out in full in plaintiff's first amended original petition, and in which appears the following as set out in plaintiff's petition: "While this matter of a public road was still in the court, certain residents of South Silsbee (meaning the plaintiff, his wife and others) most of whom, so far as known being white women (meaning thereby plaintiff's wife and others) took it upon themselves to go out under cover of darkness and destroy the Santa Fé Townsite Company's fence (meaning thereby that this plaintiff and his wife and others, residents of South Silsbee, had committed a felony, to wit, the felony of fence-cutting by cutting and destroying the fence of the Santa Fé Townsite Company hereinbefore referred to in paragraph 1 of this petition, and meaning thereby to charge said felony was committed, and said fences were cut, by the same parties who were then defendants in a certain suit then pending in Hardin county court and styled as follows: No. 1473, Santa Fé Townsite Company v. Joe Busby et al., in which suit this plaintiff...