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

• Decision Date: 03 April 1915
• Docket Number: (No. 8218.)
• Parties: FT. WORTH & D. C. RY. CO. et al. v. CRAIG et al.
• Court: Texas Court of Appeals

176 S.W. 827

FT. WORTH & D. C. RY. CO. et al. v. CRAIG et al.

(No. 8218.)

Court of Civil Appeals of Texas. Ft. Worth.

April 3, 1915.

Rehearing Denied May 1, 1915.

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

Suit by John Craig and another against the Ft. Worth & Denver City Railway Company and others. From a judgment for plaintiffs, defendants appeal. Reversed and rendered.

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

BUCK, J.

This suit was filed by John Craig and Lee Downs in the district court of Wichita county, Tex., against the Ft. Worth & Denver City Railway Company and other named railway companies, for a mandatory writ of injunction, seeking to require defendants to remove a certain iron fence which they had erected a short time before along the east edge, but within their property line, of portions of Lots 1 and 2, block 162, of the city of Wichita Falls. Plaintiffs alleged that they were the tenants under a lease of the St. Charles Hotel property, consisting of a large hotel on the second floor, with a room downstairs facing on Seventh street, with a saloon occupying the front part of said first floor, and a restaurant in the rear thereof, and that said hotel had been used for said purposes for five months prior to the suit; that they had subrented the rear portion of said building for $25 per month for restaurant purposes, and had been deriving about $5 per day for trade drawn from people using the restaurant; that prior to the suit, on, to wit, about the 11th day of May, 1911, these defendants had instituted condemnation proceedings in the county court of Wichita county for the purpose of condemning portions of said lots and block lying immediately east of the premises now owned and controlled by plaintiffs; that said condemnation was sought for the specific purpose of placing on said property sought to be condemned a brick sidewalk to furnish ingress and egress to and from the Union Depot, situated on Eighth street, and for the purpose of acquiring a sufficient amount of ground on which to lay one house track along the eastern border of said property, and one industrial track along and across said property, and for the additional purposes of station and depot grounds. It was further alleged that by the terms of the judgment in said condemnation proceedings the amount awarded, to wit, $10,000, was held to be compensation only for the uses and purposes above mentioned, and that said sum did not compensate the defendants in said condemnation proceeding for any other damages for any other use of said property; that said iron fence had been constructed within six inches of the wall of said St. Charles Hotel, which was on the division line, and ran the entire length of the premises controlled by plaintiffs herein, and joined to a fence on other property, and thereby closed the doors of plaintiffs' property which had been cut in the rear portion of said building for the purpose of a means of egress and ingress to the restaurant; that said restaurant was frequented by negroes alone; and that, therefore, the patrons of said restaurant were entirely excluded therefrom, inasmuch as they could not come through the saloon, which was used also for white trade. It was further alleged that the fence had been erected for the malicious purpose of injuring and harassing the plaintiffs and of injuring and depreciating the value and revenues of said property. It was further alleged that said fence along and adjacent to the eastern wall of the hotel building blockaded the rear portion of said leased premises, and that at the rear of said building there was a common alley which had been theretofore for a number of years prior to the condemnation proceedings, and continuously up to the erection of this fence of which complaint is made, used as a way of ingress and egress for the rear portion of said building. Other allegations were made as to damages suffered and sought to be recovered.

Defendants' original answer, after pleading a general denial, specially excepted to plaintiffs' petition: (1) Because it appeared from the face of said petition that plaintiffs had an adequate remedy at law for any injury or damages they had suffered, or would suffer, by reason of the erection and maintenance of the fence complained of; and (2) because said petition showed on its face that the defendants controlled the property upon which said fence had been built, and had the right under the law to erect a fence thereon, said fence having been alleged to be along and upon said defendants' right of way. It is further alleged in said answer that all rights granted in the judgment in said condemnation proceedings to the various railway companies had been acquired, and were now held, by the defendant Missouri, Kansas & Texas Railway Company and the defendant Ft. Worth & Denver City Railway Company. A part of said judgment in the condemnation proceedings was set out in said answer, and reads as follows:

"It is ordered, adjudged, and decreed by the court that the plaintiffs herein be, and they are hereby, authorized, upon the payment of said sums of money as herein directed, to take possession of the property hereinabove described, and to use the same for railway purposes, and to have the sole and exclusive possession of said property jointly for the railroad purposes set out in their amended petition filed herein, and shall be entitled to an immediate and exclusive possession thereof upon the payment of said sums of money."

It was further alleged that the defendants in this suit, plaintiffs in the condemnation proceedings, and their successors, had occupied and used said premises as railroad property...