Barnes v. Chicago, R. I. & T. Ry. Co.

• Decision Date: 29 November 1895
• Citation: 33 S.W. 601
• Parties: BARNES v. CHICAGO, R. I. & T. RY. CO.
• Court: Texas Court of Appeals

33 S.W. 601

BARNES v. CHICAGO, R. I. & T. RY. CO.

Court of Civil Appeals of Texas.

November 29, 1895.

Appeal from Tarrant county court; Robert G. Johnson, Judge.

Action by the Chicago, Rock Island & Texas Railway Company against M. J. E. Barnes for the purpose of condemning certain property for a right of way. From the judgment rendered, defendant appeals. Reversed.

J. F. Cooper, for appellant.

TARLTON, C. J.

This appeal is from a judgment condemning certain property of the appellant (lots 5 and 6 in block 125, in the city of Ft. Worth) to the use of the appellee. The petition (filed August 26, 1893) on which the case was tried stated the purposes for which the condemnation was sought as follows: "That it is necessary for the uses and purposes of the petitioner to have right of way over said lots for its line of railway, and the right of way, possession, use, and occupancy of the same for other necessary railway purposes, and necessary to the building, operating, and running of its road." The petition, after stating the residence of M. J. E. Barnes, the owner of the land, to be in Copiah county, Miss., also alleged the inability of the company to agree with the owner for the purchase of the land for the purposes set out, or for the amount of compensation as damages. The court, in its charge, submitted to the jury the issue as to whether the parties had been able to agree. In our opinion, there was no evidence justifying the submission of this issue. The testimony failed to disclose any attempt at such an agreement on the part of the plaintiff and the owner, Mrs. Barnes. The instruction in this respect was unauthorized and erroneous. The plaintiff seems fully to have appreciated the necessity of alleging the inability to agree, in order to maintain this proceeding. Lewis, Em. Dom. § 357. The further necessity of proof in accordance with this allegation is apparent. This proof we hold not to have been made in this instance, and the charge given was without basis in the evidence.

The judgment in this case decrees a condemnation of the land "for use as right of way, depot grounds, terminal grounds, and all other necessary railway purposes." It will be seen that the only purpose specified in the petition for which the condemnation is sought is that of the right of way. The general expression used in the pleading, "other necessary railway purposes," must be treated as surplusage. If condemnation of the property on the ground of necessity be desired...