Calcasieu Lumber Co. v. Harris

• Citation: 13 S.W. 453
• Court: Supreme Court of Texas
• Decision Date: 15 April 1890
• Parties: CALCASIEU LUMBER CO. <I>v.</I> HARRIS.

13 S.W. 453

CALCASIEU LUMBER CO.

v. HARRIS.

Supreme Court of Texas.

April 15, 1890.

Appeal from district court, Travis county.

Sheeks & Sheeks, for appellant. Osceola Archer, for appellee.

STAYTON, C. J.

The nature of this action, and averments of appellee's petition, are thus stated, with substantial accuracy, in brief of counsel for appellant: "On the 17th day of September, 1887, J. C. Harris sued the Calcasieu Lumber Company in the district court, alleging that it was a corporation, duly incorporated under the laws of Texas, February 16, 1884, for the purpose of carrying on the business of buying and selling and dealing in lumber and building material, with its domicile and principal office in Austin, Travis county, Tex. That the Houston & Texas Central Railway Company was a duly-incorporated railway company. That a line of the road runs through the town of Manor, in said county of Travis, and had run through there ever since September, 1885, and long before then. That it had a right of way at Manor two hundred feet wide. That on September 14, 1885, the Calcasieu Lumber Company `did willfully, knowingly, and unlawfully construct buildings along the line of said railway, on the said 200 feet of right of way, at the town of Manor, to be occupied by it and its employes for the purpose of carrying on its own private business as a dealer in lumber and building material, and has ever since then used and occupied and still occupies it for that purpose, which business is not, nor has it ever been, necessary for the transaction of the legitimate business operations of said railway, nor necessary for the shelter of their employes, or for the construction and keeping in repair the railway, but is an obstruction and hindrance to the railway traffic carried on by the citizens of Manor and other places over and with the railway company. That petitioner is, and has been for four years, a citizen of Manor, engaged in the business as dealer in lumber and building material. Has all of his lumber, etc., conveyed to Manor over that railway. His yard for stacking, etc., is north of the railway track about 200 feet. His lumber, etc., is thrown from the cars close to the road-bed, where it remains till he can haul it on wagons to his yard. That defendant has unlawfully, willfully, and knowingly taken possession of, occupied, and used continuously since September 14, 1885, all that part of the right of way of said railway lying between the town of Manor and the road-bed in and around the depot of said town of Manor; the same consisting of a strip lying adjoining the road-bed, about 500 feet long and 100 feet wide, and is still illegally in possession of said land, and so using it that petitioner cannot have free access to his lumber, etc., when unloaded from the cars, so as to be able to haul and transport it to his yard and place of business, by which he has been damaged, obstructed, and hindered by defendant in transporting his lumber, prevented from having free access thereto, inconvenienced in his business, prevented from expanding and enlarging his business by the acts of defendant in using, enjoying, and building upon the said premises or strip of land 500 feet long by 100 feet wide, in the sum of $50 per month, since September 14, 1885, in the sum of $1,200, for which he sues.' He prayed for judgment for $1,200; judgment ejecting defendant from the land, requiring the removal therefrom of all buildings, lumber, and building material, and perpetually enjoining and restraining defendant from ever occupying or using said premises in the future for a lumber-yard or any other purpose, `but that said premises, etc., be allowed to remain vacant for the use of the public, so that free access may be had to and from said railway by the public in carrying on business with said railway; and for general and special relief, and for costs.' Appellant answered by: (1) Demurrer. (2) General denial. (3) That the land held by it was the property, in fee-simple, of the Houston & Texas Central Railway Company, and defendant held the same under a lease given it by the railway company; that the property of said railway company was in the hands of receivers legally appointed by the United States circuit court at Galveston; that defendant had leased said land from them also, by reason of which defendant was entitled to the possession of said land; that Harris had no interest whatever, or right of way, or any other easement or right thereon, as is alleged in the petition. The court overruled defendant's demurrer. Case was tried by a jury; verdict for plaintiff as follows, in effect: `* * * We, the jury, find for the plaintiff, and assess his damage at thirty-seven dollars and fifty cents.' Judgment was rendered against the Calcasieu Lumber Company for $37.50, with interest at 8 per cent., and costs. Then the court proceeded to enter a decree restraining defendant from ever occupying any part of the premises alleged to be the right of way, and ordering defendant to remove its office, lumber-shed, and 300,000 feet of lumber and building material, within 20 days, or the sheriff should do so at the costs of said Calcasieu Lumber Company."

Appellee bases his right to maintain this action on the following statute, which is a part of the general railroad law: "Such corporation shall have the right to erect and maintain all necessary and convenient buildings and stations, fixtures and machinery, for the...