Davidson v. Texas & N. O. R. Co.

• Decision Date: 15 April 1902
• Citation: 67 S.W. 1093
• Parties: DAVIDSON v. TEXAS & N. O. R. CO.
• Court: Texas Court of Appeals

67 S.W. 1093

DAVIDSON v. TEXAS & N. O. R. CO.

Court of Civil Appeals of Texas.

April 15, 1902.

Appeal from district court, Nacogdoches county; Tom C. Davis, Judge.

Suit by John P. Davidson against the Texas & New Orleans Railroad Company to recover real estate. From a judgment for defendant, plaintiff appeals. Affirmed.

Ingraham, Ratcliff & Huston, for appellant. Baker, Botts, Baker & Lovett and Watts, Chester & Ellison, for appellee.

GILL, J.

The appellant, John P. Davidson, brought this suit against the Texas &amp New Orleans Railroad Company, a railway corporation duly incorporated under the general laws of the state of Texas, to recover possession of certain land described in the petition, and for the damages, actual and exemplary, alleged to have resulted from its wrongful appropriation by the railroad company. The court sustained general and special demurrers urged by defendant against the petition, and, the plaintiff refusing to amend, the action was dismissed. From the judgment of dismissal the plaintiff prosecutes this appeal.

The pleadings of plaintiff are lengthy, and a brief statement of their substance will answer the necessities of this opinion. The plaintiff alleged: (1) That he was the owner of certain land situated in the town of Nacogdoches; that it was of the value of about $3,000, and its annual rental value was $300. (2) That the land sued for comprised four tracts,—the tracts adjoining each other; the first two being described in Exhibit A, attached to the petition, and the second two being described in Exhibit B. (3) That on the 28th of March, 1901, the railroad company filed with the county judge of Nacogdoches county its petition to condemn the two tracts described in Exhibit A, and on the date named the county judge appointed and swore three commissioners, as required by law. In this proceeding the appellant and R. H. Lee, his tenant, were made defendants. (4) On the same day like proceedings were instituted against the two tracts described in Exhibit B, and appellant, his tenant, Lee, Geo. F. Ingraham, and E. A. Blount were made defendants, as owners or claimants thereof. (5) That Geo. F. Ingraham claims no interest in the lands, and so testified before the commissioners, but that E. A. Blount has brought suit against appellant for the lands described in Exhibit B, though appellant is the owner, and was in possession at the date of the institution of the suit by Blount. (6) That due notice was had in the condemnation proceedings, and the cause was tried before the commissioners and decided on April 5, 1901. In the proceeding involving the lands described in Exhibit A, they awarded damages in the sum of $375, and for those mentioned in Exhibit B the sum of $800; and on the following day the railway company deposited with the county clerk $750 in the first case, and $1,600 in the second case. (7) That thereafter, within the time prescribed by law, the cases were appealed by defendant to the county court, and are there now pending. (8) That in neither of said causes is there any separate finding as to the amount due each defendant; that in the first case the money is deposited to the joint order of appellant and R. H. Lee, and in the second case it is deposited to the joint order of Lee, Blount, Ingraham, and appellant. (9) It is averred that the railroad company, as to the deposit of money and the execution of bonds, fully complied with the act of 1899, amending article 4471 of the Revised Statutes of 1895, and thereupon took possession of the lands. The amending act of 1899 is set out in full in the petition, and assailed as unconstitutional in so far as it authorizes railway companies in condemnation proceedings to take possession of the premises sought to be condemned, and proceed with the construction of the road, prior to the final determination of the litigation. It is averred to be in conflict with section 17 of article 1 of the constitution of this state. (10) That the railroad company acquired no rights under the condemnation proceedings, because other parties were made defendants in connection with appellant, when he alone was the true owner; that he cannot secure in those proceedings an adjudication of the question of ownership as between himself and his codefendants; and that, as the money is deposited to the order of the defendants in those proceedings, he cannot have same paid over to him, except at the end of another litigation between himself and his codefendants. (11) That the railroad company previous to the institution of these condemnation proceedings had, through the aid of the citizens of Nacogdoches, by consent of parties and by condemnation proceedings, procured and established for its proposed line a right of way through the town over a different course than that now proposed; that it partially graded and fenced same, and selected and designated their depot grounds; that the route first selected ran through other property of this appellant; that, without the consent of the railroad commission of Texas, the company is now changing its line so that in some places it is 300 feet from the first route; and that the condemnation proceedings complained of are for the purpose of securing to it the second route. Appellant prays for possession of the property, for injunction restraining the company from further interference therewith, and for damages, actual and exemplary. The sufficiency of these allegations was questioned by general demurrer and special exceptions, and the disposition of the case has already been stated.

Appellant assigns as error the action of the trial court in sustaining the general demurrers and each special exception; the latter being addressed to no defect in the petition as to form, and being urged only as so many reasons why the general demurrer should be sustained. The assignments are grouped and treated together by appellant, and his four propositions made thereunder present the grounds upon which he hopes to secure a reversal of the judgment. They are as follows: "(1) The county court had no authority to try the questions as to which of the defendants, John P. Davidson or E. A. Blount, owns the land. (2) The act of the legislature amending article 4471 of the Revised Statutes of 1895 is unconstitutional and void in so far as it attempts to give possession of the land before the just compensation mentioned in article 1, § 17, of the constitution of the state, has been finally determined and settled by judicial decree ending the litigation in the given case. (3) No railroad company has the right to change its line through any city or town, except upon the written order of the railroad commission of the state of Texas. (4) No railroad company has the right to change its line in such a way as to abandon any station or depot, except upon the written order of the railroad commission of the state."

The petition discloses that this suit is a collateral attack on the validity of condemnation proceedings mentioned therein as pending and undisposed of. Hence it follows that such questions as could be disposed of in those proceedings, and which involve mere irregularities, cannot be determined on this appeal. The matters involved in appellant's third and fourth propositions are of this nature. So, also, is the complaint that the court failed to apportion the sum adjudged between the appellant, his lessee, and the other claimants. In proceedings instituted by railway companies for the condemnation of land, there can be but two issues: First, the right to condemn; second, the amount of compensation. The judgment in such a proceeding would be res adjudicata of these issues. If the trial court, in disposing of them, committed errors, appellant has his remedy by appeal. Such errors would not render the judgment void, and, unless corrected by appeal or writ of error, the judgment or pendency of the proceedings would be a complete bar to an action of this sort, unless for some other reason the proceedings were open to collateral attack. These principles are too well settled to require extended discussion, or citation of authority in their support.

But under the first ...