Chapman v. Trinity Valley & N. Ry. Co.

• Decision Date: 12 May 1911
• Citation: 138 S.W. 440
• Parties: CHAPMAN v. TRINITY VALLEY & N. RY. CO.
• Court: Texas Court of Appeals

138 S.W. 440

CHAPMAN v. TRINITY VALLEY & N. RY. CO.

Court of Civil Appeals of Texas. Galveston.

May 12, 1911.

Rehearing Denied June 8, 1911.

Appeal from Liberty County Court; J. B. Simmons, Judge.

Proceedings by the Trinity Valley & Northern Railway Company against J. R. Chapman and others to condemn land for a right of way. From a judgment awarding damages, defendant Chapman appeals. Affirmed.

Terry, Cavin & Mills and Rodman S. Cosby, for appellant. Stevens & Pickett and Baker, Botts, Parker & Garwood, for appellee.

REESE, J.

This is an appeal from a judgment of the county court in a proceeding for the condemnation of a right of way, instituted by the Trinity Valley & Northern Railway Company against J. R. Chapman as owner of the growing timber, and other persons owning the land, the right of way, 100 feet wide, across which was sought to be condemned. The trial court sustained certain special exceptions to parts of Chapman's objections to the right of the railway company to condemn, and on trial with a jury there was a judgment in favor of the railway company as to the right of way, and awarding Chapman $27.50 damages for the timber, and the owners of the land $16.65, the value of the land taken. From the judgment Chapman alone appeals.

The Trinity Valley & Northern Railway Company was duly and regularly created under the provisions of title 94 of the Revised Statutes as a railway company, for the purpose of constructing and operating a standard gauge railway beginning in or near the town of Dayton in Liberty county, and extending thence in a northerly direction through the county of Liberty to a point in or near the town of Cleveland in said county. The regular incorporation of the railway company is not denied by appellant. Appellant opposed to the right of appellee to condemn the right of way the following special objections, set out in different paragraphs of his answer:

"First. This petitioner further represents that the so-called railway company is not in fact a railway at all, but that it is incorporated solely or primarily for the purpose of hauling lumber and mill products and kindred freight for and to the mill of the Dayton Lumber Company in Dayton, Tex.; that said Trinity Valley & Northern Railway Company is for the most part owned and controlled by the said Dayton Lumber Company; that it was incorporated and organized, not primarily for the benefit of the public at large and for the development of the country through which it traverses, but primarily to subserve the interest of the Dayton Lumber Company in transporting its mill products to the market.

"Second. That the incorporation of the said Trinity Valley & Northern Railway Company as a common carrier and its recognition by the Railroad Commission of the State of Texas as such were had and procured fraudulently, and for the sole purpose of obtaining illegal and unauthorized benefits at the expense of the public, and more particularly at the expense of the petitioner herein; that the said Trinity Valley & Northern Railway Company has no intention of complying with the purposes as set out in its charter; that the appliances and equipment of the said Trinity Valley & Northern Railway Company are of a temporary nature and are to serve a temporary purpose; that the maintenance of depots, section houses, and station houses, and the operation of a so-called passenger train by the said Trinity Valley & Northern Railway Company are all done with the end in view that the real purpose of the Trinity Valley & Northern Railway Company be concealed; and that, in the guise of a common carrier, it may obtain such benefits, privileges, and advantages as it would not otherwise and should not legally possess.

"Third. Petitioner further alleges that nine-tenths of the material hauled by the said Trinity Valley & Northern Railway Company is material and freight belonging to the Dayton Lumber Company or the employés and agents thereof, or material and freight in which the Dayton Lumber Company, its agents or employés, are directly interested; that nine-tenths of the passengers that the Trinity Valley & Northern Railway Company hauls are employés, agents, and servants of the said Dayton Lumber Company.

"Fourth. Petitioner further...