Fort Worth & D. S. P. Ry. Co. v. Judd

Decision Date29 February 1928
Docket Number(No. 2967.)
Citation4 S.W.2d 1032
PartiesFORT WORTH & D. S. P. RY. CO. v. JUDD et al.
CourtTexas Court of Appeals

Appeal from Lubbock County Court; Chas. Nordyke, Judge.

Condemnation suit by the Fort Worth & Denver South Plains Railway Company against A. Judd and another. From the award of the commissioners, Judd appealed to the county court. From an adverse judgment in the county court, plaintiff appeals. Affirmed.

Robt. H. Bean and Bean & Klett, all of Lubbock, for appellant.

Vickers & Campbell and Walter F. Schenck, all of Lubbock, for appellees.

HALL, C. J.

This is an appeal by the railway company, plaintiff below, from an adverse judgment rendered in the county court of Lubbock county, in a condemnation suit, wherein A. Judd, the owner of the premises, and A. M. Kruger, his tenant, were defendants. The railway company sought to condemn a strip of land 200 feet wide, running diagonally across three blocks, containing 5 acres of land, each a part of the Wheelock second addition to the town of Lubbock. Commissioners were appointed and awarded Judd damages in the sum of $2,150, and Kruger damages in the sum of $1,250. From this award, Judd appealed to the county court, duly filing his objections in writing. Whereupon the plaintiff deposited $6,800, being twice the amount of the award, with the county clerk, in accordance with R. S. 1925, art. 3268. Thereafter the county judge, on the 8th day of July, entered an order directing the clerk to pay Kruger the $1,250 awarded to him as damages. Kruger had a leasehold interest in only a portion of the land owned by Judd, under a lease for 5 years, which did not expire until about 3 years after the trial.

When the case came on for trial in the county court, Kruger moved the court to dismiss him from the suit. The motion was granted over the objection of the railway company. The case was then tried to a jury, and, in answer to special issues, the jury found that the market value of the land owned by Judd, taken for right of way purposes, was $1,375, and that the remainder of the land not taken was decreased in market value $2,050. In accordance with the verdict, the court rendered judgment in Judd's favor for the sum of $3,400.

The evidence shows that Judd was the owner in fee simple of the land described in plaintiff's petition, and that he was occupying the greater portion of the land with his family, as a homestead; that Kruger occupied a portion of the land under his lease; and that the proposed right of way crossed that portion diagonally. Kruger admitted that he had received the $1,250 awarded by the commissioners in full settlement of his claim for damages.

The court submitted the controversy upon two issues, as follows:

"No. 1. What is the market value of the land owned by A. Judd that is to be taken as right of way? Answer in dollars and cents,"

— to which the jury answered, "$1,375."

"No. 2. What do you find is the decrease, if any, in the market value of the land owned by A. Judd not taken for right of way purposes? Answer in dollars and cents,"

— to which the jury answered, "$2,025."

The appellant requested the court to submit the following issue:

"What do you find is the decrease, if any, in the market value of Judd's reversionary interest in the tract of land not taken by the railroad company?"

The appellant contends that the court erred in not submitting this special issue and in submitting the issues quoted above, and as a result of such error the finding of the jury necessarily includes Kruger's damages, which should be deducted from the total amount found by Judd and the judgment entered for the remainder. We overrule these contentions.

By the language of the issues, the jury was confined to a consideration of only the damages claimed by Judd. The record shows that Judd and Kruger both testified concerning the lease from the former to the latter and the lease itself was introduced in evidence. Kruger testified that before the trial commenced he had accepted the damages awarded him by the commissioners. In the light of these facts, it is clear that the jury, in fixing the amount of damages, considered only the damages claimed by Judd.

The appellant insists that the trial court erred in dismissing Kruger from the suit, for the reason that Judd had filed his objections to the award of the commissioners, thereby perfecting the appeal as to all parties, and that the effect of the appeal was to annul the award of the commissioners and require a trial in the county court de novo as to all parties.

The statute does not provide, in cases of this kind, that the trial shall be de novo. R. S. 1925, art. 3266, subd. 6, is:

"If either party be dissatisfied with the decision, such party may within ten days after the same has been filed with the county judge file his objection thereto in writing, setting forth the grounds of his objection, and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes in the county court."

The rule is established in other jurisdictions that, where the statute provides for a trial de novo in the appellate court, the effect of an appeal is to vacate the decision appealed from until the appeal is disposed of, and that an appeal in such cases by one claimant takes up the whole case where it must be tried as an entirety de novo. But it is further held that ordinarily an appeal by one person does not affect the decision appealed from, as to others, where the statute does not expressly provide for a trial de novo in the appellate court. 2 Lewis, Em. Dom. (3d Ed.) § 793; 2 Nichols, Em. Dom. (2d Ed.) § 431.

Judd, being the only party to the proceeding who was dissatisfied, prosecuted his appeal. Kruger's acceptance of the damages awarded him shows that he was satisfied, and the failure of appellant to file any objections to the award in the county court conclusively shows that it was satisfied with the award as to both claimants. By such failure, the appellant concedes that Kruger was entitled to the amount of compensation awarded him. One of the claimants had the freehold estate and the other the leasehold interest to only a part of the land, and their rights to damages to their respective interests were separate and distinct. T. & P. Ry. Co. v. Saunders (Tex. App.) 18 S. W. 793; G. C. & S. F. Ry. Co. v. Caldwell (Tex. Civ. App.) 102 S. W. 461. We do not construe the language of subdivision 6 of the statute, above quoted, as meaning that the trial shall be de novo in the county court. Appellant insists that the same rule should be applied in this case as obtains in appeals from the justice court to the county court; the effect in such cases being to annul the judgment of the justice of the peace, transfer the entire controversy to the county court, and require a trial de novo as to all parties and issues. These rules, in ordinary appeals from the justice to the county court, obtain, because the statute expressly provides that the trial in the county court shall be de novo.

Moreover, the Supreme Court held, in Slayton v. Horsey, 97 Tex. 341, 78 S. W. 919, that one defendant in a justice court case could appeal to the county court, without making a codefendant, who was not adversely interested to him, an obligee in the appeal bond. The interests of Judd and Kruger in this case are not adverse. Neither are they identical. The claim of either is separate from and independent of the other, although under the rules of procedure they were properly joined in the same action. Neither of them filed any objection to the award of damages made to the other, nor is it conceived that any such right existed. So the sole question involved in the appeal of Judd is the amount of his compensation, in which the tenant had no interest. It may be conceded that, if the award appealed from had not apportioned the damages between the landlord and tenant, then the appeal of one would have resulted in transferring the entire controversy, as between all parties, to the county court.

The rule is settled that the condemnor has no interest in the apportionment of the damages between various claimants. Where the damages are awarded separately, as in this case, and no party is dissatisfied with the award to one claimant, no reason is apparent why the claimant who is satisfied with the amount of damages awarded him should be required to await the determination of the controversy between a dissatisfied claimant and the condemnor. Roper v. New Britain, 70 Conn. 459, 39 A. 850; Clark v. Phelps, 4 Cow. (N. Y.) 190. The railway company had the right to bring the controversy between it and Kruger to the county court by filing objections to the award made him. Its failure to do so is conclusive against its right to insist that he be retained as a party in the county court for the purpose of again litigating an issue which has been settled to the satisfaction of both the company and Kruger. The deposit made by the railway company was, by the terms of the statute, subject to acceptance at any time by either of the claimants, and, in receiving the amount due him, Kruger was exercising a right conferred by the statute and impliedly assented to by the company in making the deposit.

That a tenant for years is the owner of property in the constitutional sense, and, as such, is entitled to share in the compensation and to recover his full damages to his leasehold interest in compensation proceedings, unless the total damages awarded the several interests exceed the value of the land, is settled without dissent. 10 R. C. L. 134, § 118, and 135, § 19; 16 R. C. L. 606.

There is a conflict of authority upon the question whether the owner may recover the cost of removing buildings and other improvements found to be upon the land taken or too near the proposed right of way, as a separate item of damages. Some decisions hold that the...

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