Ayres v. Gulf, C. & S. F. Ry. Co.
| Citation | 88 S.W. 436 |
| Parties | AYRES v. GULF, C. & S. F. RY. CO. et al. |
| Decision Date | 26 May 1905 |
| Court | Court of Appeals of Texas |
Appeal from District Court, Montgomery County.
Action by J. K. Ayres against the Gulf, Colorado & Santa Fé Railway Company and others. From a judgment in favor of plaintiff for less than the relief demanded, he appeals. Affirmed.
Dean, Humphrey & Powell, for appellant. J. W. Terry and F. J. & R. C. Duff, for appellee Gulf, C. & S. F. Ry. Co. N. A. Stedman and Gould & Morris, for appellee International & G. N. R. Co.
This was an action of trespass to try title, by which J. K. Ayres sought to recover a strip of land extending through the Wilson Lang survey in Montgomery county, and claimed by the International & Great Northern Railroad Company as a part of its right of way. The Gulf, Colorado & Santa Fé Railway Company was made a party defendant as a joint occupant of a part of the strip in dispute. The defendants pleaded not guilty and limitation of five and ten years. On a hearing the court instructed a verdict for defendants on the theory that the undisputed proof established limitation of ten years in favor of the International & Great Northern Railroad Company to a strip 120 feet wide extending through the Lang tract, and a judgment was rendered therefor. The costs were adjudged against defendants because the width sued for was 150 feet, and the plaintiff recovered the difference. The plaintiff has appealed.
The facts are as follows: In 1866 the Great Northern Railroad Company obtained a charter from the state of Texas empowering it to construct a railroad through the county of Montgomery, and to other points not necessary to be disclosed. By 1871 it had constructed the road and begun its operation. In 1879 it sold its road and franchise to the International & Great Northern Company, which continued the operation of the road up to the time of the bringing of this suit. Inasmuch as the defendant Santa Fé Company holds only under and by virtue of the rights of its codefendant, we do not further state its connection with this case. At the time of the construction of the road in question the land was a part of the public domain. The charter of the Great Northern Company was special, and authorized it to acquire a right of way along its route, not to exceed 50 yards in width, but contained no express and unequivocal terms of donation in that respect. The Wilson Lang survey was patented in November, 1873, and was described as lying on the Great Northern Railroad. In March, 1887, the plaintiff acquired the Lang survey, moved upon the tract, and has occupied it ever since. The town of Conroe, which is the county site of Montgomery county, was established after appellant's purchase, and is partly on the Lang survey. It is situated at the intersection of the roads of the two defendants. In 1888 or 1889 appellant platted a part of the Lang survey into town lots, and began to sell them according to the plat. This plat recognized the right of way of the Great Northern as having a width of 65 feet from the center of the track each way, the lots abutting on the right of way according to that width. Plaintiff testified that he saw the road in 1872. It was completed and the right of way cleared at that time. It has been kept cleared ever since in the general maintenance of the line, but a little wider now than...
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San Antonio Public Service Co. v. State, 7816.
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