Craig v. Ft. Worth & D. C. Ry. Co.

Decision Date25 March 1916
Docket Number(No. 8346.)
Citation185 S.W. 944
PartiesCRAIG et al. v. FT. WORTH & D. C. RY. CO. et al.
CourtTexas Court of Appeals

Appeal from District Court, Wichita County; J. W. Akin, Judge.

Injunction proceedings by John Craig and another against the Ft. Worth & Denver City Railway Company and others. From a judgment denying the injunction, plaintiffs appeal. Affirmed.

See, also, 176 S. W. 827.

T. R. Boone, of Wichita Falls, for appellants. Carrigan, Montgomery & Britain, of Wichita Falls, and Thompson & Barwise and G. W. Wharton, all of Ft. Worth, for appellees.

DUNKLIN, J.

In the year 1911 the Ft. Worth & Denver City Railway Company, the Wichita Valley Railway Company, the Wichita Falls & Oklahoma Railway Company, and the Missouri, Kansas & Texas Railway Company filed condemnation proceedings to subject for their use a strip of land 24.48 feet wide from east to west and 100 feet long from north to south situated in the city of Wichita Falls, Tex., lying south of Seventh street, and bounded on the north by the south line of said street, the St. Charles Hotel Building lying west of and adjacent to said strip, and the right of way of the Ft. Worth & Denver City Railway Company being adjacent to said strip on its east line. The purpose of said condemnation, as shown in the petition therefor, was as follows:

"Your petitioners would represent and show to the court that it is necessary for said railway company to acquire the possession of said above-described property for the purpose of placing a brick sidewalk upon same to furnish ingress and egress to and from the Union Depot so to be constructed and now in the course of construction, and for the purpose of acquiring the ground upon which to lay one coach track and industrial track, and for additional depot and station ground for said sidewalk as aforesaid."

Upon that petition a decree of condemnation was awarded in which the following appears:

"It is further adjudged and decreed that the sum awarded by said commissioners herein as damages to the adjacent property belonging to said Mrs. Adeline Rucks and the other defendants is only for the construction and maintenance of the two railway tracks described in plaintiff's original petition filed herein, which two tracks are described and to be located in said property taken, said tracks to be for one coach track and for one industrial track, said track to be laid on the eastern border and said industrial track to be located across said property between said coach track and the said St. Charles Hotel Building, the said property to be used also by said plaintiff as a brick walk thereon to furnish ingress and egress to the Union Depot, and that said sum does not compensate said defendants for any other damage for any other use of said property."

On February 2, 1915, John Craig and Lee Downs, lessees of the St. Charles Hotel Building, instituted the present suit to restrain the railway companies from maintaining an iron fence which had theretofore been erected about 8 feet high within 6 or 8 inches of the east wall of the hotel building, and running the entire length of said building, and for a mandatory injunction requiring the railway company to remove said fence, and for damages to their business by reason of the erection of said fence; and from a judgment in favor of the defendants, the plaintiffs have appealed.

This case was before us on a former appeal and, our opinion then rendered appears in 176 S. W. 827. The case was tried by the court without the aid of a jury, and the trial judge filed findings of fact which included, among others, the facts recited above. Other findings by the court are as follows, omitting therefrom the unnecessary repetition of the expression "The court finds that," with which nearly every paragraph of the findings begins, and so changing the language used as to state the findings in a narrative form, but without any other change:

"II. Plaintiffs went into possession of the premises occupied by them on the 5th day of September, 1914, and have since continued to occupy same as a hotel, saloon, and restaurant.

"III. Said restaurant was, and has since continued to be, a restaurant for negroes, while the saloon and hotel was principally for white people, with the negro trade in the rear portion of the saloon. * * *

"VI. The defendant companies at the time they condemned said premises on which this fence is erected began to use the western portion of said premises, being the portion lying next to the plaintiff's business, as a public thoroughfare from Seventh street, in the city of Wichita Falls, Tex., to the Union Depot, on Eighth street, in the city of Wichita Falls, Tex., and in order to make same passable and usable the defendants erected both on Seventh street and Eighth street cement sloping driveways, and then filled said passway in with cinders from Seventh street to Eighth street, and at the point where said passway crossed the Blair-Hughes track the defendant companies erected the usual crossing by placing large, heavy boards between the rails and on each side of the rails.

"VII. When the defendants herein condemned a tract of land 24.48 feet wide just east of the building occupied by plaintiffs, said property, in 1911, they erected and maintained a driveway between Seventh street and Eighth street and scattered cinders throughout the distance from Seventh street to Eighth street for the purpose of filling up the holes, and for the purposes of making a public passway between said streets and to the Union Depot in the city of Wichita Falls, Tex., and the defendants herein erected and maintained a crossing over the Blair-Hughes house track, and near the end of the premises now occupied by these plaintiffs, which has been used as a public crossing for three years prior to the time plaintiffs entered into possession of said premises.

"VIII. These defendants have only put into use the southeast corner of the premises so condemned by these defendants by erecting the industrial track leading to the Blair-Hughes House, and the defendants so far have never used the remainder of said premises condemned by them in 1911 for the purposes set forth in the condemnation proceedings, except to erect and construct the industrial track which runs across the southeast corner of said premises, and by erecting and maintaining the passageway next to the building occupied by plaintiffs.

"IX. The passageway erected and constructed and maintained by these defendants between Seventh street and Eighth street where the Union Depot in the city of Wichita Falls, Tex., is located has been maintained by these defendants for the use of the public, both for vehicles and foot passengers, continuously, and said passageway lies along and next to the building occupied by these plaintiffs, and along which these defendants erected the fence as heretofore stated.

"X. On September 5, 1914, and for three years prior thereto, there had been maintained a passageway lying and being by the side of the brick building now occupied by these plaintiffs,

"XI. These plaintiffs at the time they entered into said contract for the lease of said premises, and at the time they made the improvements on these premises, thought and believed that said passageway between Seventh street and Eighth street was a public thoroughfare and passageway.

"XII. Plaintiffs relied upon said passageway being a public thoroughfare when they leased and improved said premises for the purpose of occupancy.

"XIII. Plaintiffs cut one door in the side of said building at the time they opened same, about September 5, 1914.

"XIV. Plaintiffs cut the second door in said premises, being the door in the rear of the saloon, about the 1st of November, 1914.

"XV. The expense of cutting these doors was about $12.50 for each door.

"XVI. The defendants and their agents at the time that plaintiffs entered into possession of said premises knew for what purpose they were using and intended to use said premises, and knew that these plaintiffs were expending money on these premises for the purpose of occupancy, and said nothing to these plaintiffs until after they had expended the sum of about $25 toward making openings leading on to this passageway from Seventh street to Eighth street, and which passway lay along and by the side of the building occupied by these plaintiffs, and which was extended from Seventh street to the Union Depot, on Eighth street, in the city of Wichita Falls, Tex.

"XVII. About the morning of January 7 (before 9 o'clock a. m.), A. D. 1915, the defendant companies erected an iron fence about 8 feet high and within 6 or 8 inches of the premises occupied by these plaintiffs, the entire length of said building, and thereby completely blockaded the door leading into the restaurant in the rear part of the premises occupied by these plaintiffs and the rear door of said saloon so maintained on these premises occupied by these plaintiffs.

"XVIII. This fence is erected and maintained by these defendants along the side of this passageway (from Seventh street to the Union Depot) and on the premises condemned by these defendants in May, 1911.

"XIX. At the time these defendants erected and maintained said fence on January 7, 1915, they knew for what purpose these plaintiffs were at that time using said building and using these openings and had been using said openings prior thereto.

"XX. Neither the plaintiffs nor any one connected with the premises operated and controlled by these plaintiffs ever permitted or authorized the defendant companies to erect and maintain said fence, but did at the time resist, and have continued to resist, the maintenance of said fence by these defendant companies.

"XXI. The erection and maintenance of this fence by these defendants on the property condemned by them in 1911 is an additional use of said property than that set forth in the condemnation decree.

...

To continue reading

Request your trial
3 cases
  • Gillespie v. Board of Com'rs of Albany County
    • United States
    • Wyoming Supreme Court
    • March 13, 1934
    ... ... Town of Darieu, 162 A. 837; Shell Pipe Line Corp. v ... Woodfolk, 53 S.W.2d 917; Wood v. Dake Land & Imp ... Co., 81 S.E. 422; Craig v. Fort Worth & D. C. Ry ... Co. (Texas) 185 S.W. 944. Appellant in acquiring the ... right of way for the road, may make any use of it for ... ...
  • Aycock v. Houston Lighting & Power Co.
    • United States
    • Texas Court of Appeals
    • June 17, 1943
    ...the law that railroad companies have the right and duty under certain circumstances to fence their rights of way. Craig v. Ft. Worth & D. C. Ry. Co., Tex.Civ.App., 185 S.W. 944. Such right as to railroad is statutory under some circumstances and under some circumstances a common-law right. ......
  • Shelton v. City of Abilene
    • United States
    • Texas Court of Appeals
    • February 1, 1935
    ...the underpass is analogous, it seems to us, to the construction and maintenance of the fence considered in Craig v. Fort Worth & D. C. Ry. Co. (Tex. Civ. App.) 185 S. W. 944, 947, as to which it was said: "* * * the maintenance of the fence is not an additional use of the property, but rath......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT