City of Tyler v. St. Louis Southwestern Ry. Co. of Texas

• Decision Date: 14 March 1905
• Citation: 87 S.W. 238
• Parties: CITY OF TYLER et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.
• Court: Texas Court of Appeals

87 S.W. 238

CITY OF TYLER et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.

Court of Civil Appeals of Texas.

March 14, 1905.

On Rehearing, May 16, 1905.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Action by the city of Tyler and others against the St. Louis Southwestern Railway Company of Texas and others. Judgment for defendants, and plaintiffs appeal. Affirmed, and motion for rehearing refused.

H. Chilton, Johnson & Edwards, and Cain & Knox, for appellants. E. B. Perkins, Marsh & McIlwaine, Head & Dillard, Finley Knight & Harris, and Glass, Estes & King, for appellees.

GILL, J.

The city of Tyler, a municipal corporation, and W. H. Cousins and wife and Mrs. Johanna Pabst brought this suit against the St. Louis Southwestern Railway Company of Texas and its officers, seeking to enjoin the removal of the main machine shops and general offices of the road from the city, and to compel the specific performance of an alleged contract to keep them at that point perpetually, The following is a condensed statement of appellants' pleaded cause of action: The city averred that in 1880 the Texas & St. Louis Railway Company, which, for convenience, we will call the "first company," contracted in writing that if the city would give it the right of way through its streets, and eight acres of land upon which to establish shops, and $4,000 in cash, the company would establish and perpetually maintain its main machine shops and the general offices of the road at Tyler, in Smith county, Tex. It was averred that in pursuance of this agreement the city gave the right of way through and over its streets, paid to the company $4,000 in cash, and procured the conveyance of eight acres of land for shop purposes; that thereupon the said first company constructed its road through the city of Tyler as proposed, and, in pursuance of the agreement, established its offices and shops in said city, and kept and maintained them there until the said first company was sold under foreclosure proceedings in 1886; that the company which purchased at foreclosure, viz., the St. Louis, Arkansas & Texas Railway Company, which, for convenience of reference, we shall call in this opinion the "second company," was in fact but a reorganization of the first company; that it took possession of the road, grounds, and properties of the first company, and continued to maintain the shops of the road at Tyler, but removed the general offices of the road to Texarkana, and so maintained them until the second company was sold out under foreclosure proceedings, and ultimately bought in by the main defendant, the St. Louis Southwestern Railway Company, which, for convenience, we will refer to in this opinion as the "third company." It was averred with respect to the third company that it was but a reorganization of the second. It was further charged by plaintiffs that prior to the culmination of the lastnamed foreclosure proceedings the city of Tyler, and others interested and concerned, brought a suit against the second company to establish the contract alleged, and to require the maintenance of the shops and the reestablishment of the offices at Tyler in pursuance of the contract; that these proceedings were pending in court at the time of the last foreclosure and the purchase by the third company; that, in a conference between the city and the duly authorized agents of the third company, it was agreed that the third company would, in consideration of the dismissal of the pending suits, and the conveyance to the third company of 30 acres of land additional for shop purposes, undertake the performance of the contract of the first company, continue to maintain and perpetually maintain the main shops at Tyler, and would remove the general offices to that point, and perpetually maintain them there; that thereupon the pending suits were dismissed, the 30 acres additional lands conveyed, and the third company, in pursuance of this agreement, continued to maintain its shops at the point mentioned, and upon the lands thus conveyed and those previously conveyed, and removed its general offices from Texarkana to Tyler, and has so maintained them since, but is now threatening to remove them, and is proposing to amend its charter to that end. The trial judge granted a temporary injunction. Cousins and wife and Mrs. Pabst alleged that in 1880 they conveyed to the first company a part of the eight acres for the consideration named in the city's petition; that they were parties to the pending suits above mentioned, and that in 1891 they, at the solicitation of the third company, duplicated their deeds of 1880, which had been lost; and that these deeds and the considerations for which they were executed required the said third company to so maintain its offices and shops as alleged by the city, and were executed upon that consideration. It was averred that both the deeds of 1880 and 1891 were made to the city for the use of the vendees. This suit was brought by the city for itself, and for the use of its citizens who had contributed to the bonus by which the alleged contract was procured. The company answered by general denial, the statutes of limitation of two and four years, and further pleaded that the contract was against public policy. The statute of frauds was also interposed. As against the relief sought, it pleaded that the plaintiffs had an adequate remedy at law. The trial court submitted the case upon special issues, and the jury found all the city's allegations to be true, except that regarding the reorganization of the respective companies. As to that issue, they found the foreclosures absolute. They found the execution of the Cousins and Pabst deeds to have been upon the consideration alleged. As to all the findings of the jury, we are of opinion they were supported by the evidence admitted. This disposes of the assignments questioning the sufficiency of the evidence to support them. The allegations of the individual plaintiffs were also found to be true, and we find them supported by the evidence adduced.

We here set out in affirmative form the answers of the jury, and also the fact findings of the trial court found in addition thereto:

"We find:

"First: That the Texas & St. Louis Railway Company in Texas did in 1880 enter into a written agreement with the city of Tyler, or with the citizens of Tyler, acting through the mayor of said city, whereby it agreed to establish and maintain its main machine shops in the city of Tyler.

"Second. That by the terms of said contract the said machine shops were to be perpetually maintained or operated in said city of Tyler.

"Third. That the Texas & St. Louis Railway Company did in 1880 enter into a written agreement with the city of Tyler, or with the citizens of Tyler, acting through the mayor of said city, whereby it agreed to establish and maintain the general offices of said road in the city of Tyler.

"Fourth. That the said contract, by its terms, provided that the said general offices should be perpetually maintained in the said city of Tyler.

"Fifth. That the Texas & St. Louis Railway Company received the considerations which were agreed to be delivered to it by said contract.

"Sixth. That the said Texas & St. Louis Railway Company accepted said eight acres of ground and the right of way through said city of Tyler under or in pursuance of said contract and agreement.

"Seventh. That said Texas & St. Louis Railway Company located its general offices in Tyler, and that it constructed and operated its main machine shops in Tyler on said eight acres of ground, and that the same was in pursuance of the contract of agreement.

"Eighth. That the defendant the St. Louis Southwestern Railway Company of Texas, the present company, ratified or adopted the contract between the city of Tyler and the Texas & St. Louis Railway Company.

"Ninth. That in the year 1880 the plaintiffs W. H. Cousins and wife, Sue E. Cousins, conveyed to the Texas & St. Louis Railway Company, or to the city of Tyler for the use and benefit of said railway company, by deed, a portion of the grounds or lands upon which the said Texas & St. Louis Railway Company erected or constructed its machine shops in the city of Tyler.

"Tenth. That the said deed from said Cousins and wife to said railway company recited the consideration for the conveyance of said lands to be that the said Texas & St. Louis Railway Company would locate and perpetually operate its main machine shops and its general offices in the city of Tyler.

"Eleventh. That the said Texas & St. Louis Railway Company went into possession of said lands under the deed from Cousins and wife.

"Twelfth. That the deed from W. H. Cousins and wife, Sue E. Cousins, which was dated in March, 1891, to the city of Tyler, and which has been offered in evidence, was procured to be executed by the defendant the St. Louis Southwestern Railway Company of Texas, or some agent or representative of that company acting for it, and that said company ratified said deed and the considerations therein by establishing its general offices in Tyler, and its machine shops on the land, or a part thereof, conveyed.

"Thirteenth. That the St. Louis Southwestern Railway Company of Texas procured the deed from said Cousins and wife referred to in last question, and that at the time it procured the same it agreed or contracted with the Cousins to re-establish said general offices of said company and main machine shops in Tyler.

"Fourteenth. That in the year 1880 Julius Pabst and wife, Johanna Pabst, conveyed by deed to the Texas & St. Louis Railway Company, or to the city of Tyler for the use and benefit of said railway company, a portion of the eight acres of land on which the said Texas & St. Louis Railway Company constructed its machine shops in Tyler.

"Fifteenth. That the deed from the said Julius Pabst and wife recited the consideration for the conveyance of said lands to be that the...