Ft. Worth Ice Co. v. Chicago, R. I. & T. Ry. Co.

• Citation: 33 S.W. 159
• Parties: FT. WORTH ICE CO. v. CHICAGO, R. I. & T. RY. CO.
• Decision Date: 27 November 1895
• Court: Court of Appeals of Texas

33 S.W. 159

FT. WORTH ICE CO. v. CHICAGO, R. I. & T. RY. CO.

Court of Civil Appeals of Texas.

November 27, 1895.

Appeal from Tarrant county court; Robert G. Johnson, Judge.

Proceeding by the Chicago, Rock Island & Texas Railway Company against the Ft. Worth Ice Company to condemn land. Judgment for petitioner, and defendant appeals. Reformed and affirmed.

Hogsett & Orrick, for appellant. Capps & Canty and N. H. Lassiter, for appellee.

JAMES, C. J.

The first and second assignments are without merit. Apart from the waiver of irregularities or defective pleading which results from the acceptance by appellant of the sum awarded by the commissioners (Elliott, Roads & S. p. 207), we are of opinion that the petition for condemnation sufficiently indicates the purpose for which the strip described was sought to be taken, viz. for a right of way necessary to enable appellee to construct and maintain its railway. The first step in the history of this proceeding was an injunction, sued out by appellant on June 17, 1895, restraining appellee from entering upon its property. Thereupon the application to condemn was filed in the county court, which resulted in an award to appellant of $1,900 for the right in the land sought by appellee. On July 10, 1893, appellee moved in the district court, in which the injunction had been sued out, to vacate the same, exhibiting the proceedings had in the county court, and averring that it had tendered, and did now tender, to appellant the amount of said award, and that the tender had been refused. On July 11, 1893, the motion was heard, and the restraining order vacated. Previous to this, on July 5, 1893, appellant had filed objections to the award of the commissioners. In January, 1894, appellant made a motion in the injunction suit in the district court, alleging that the railway company had withdrawn its offer of said sum of money, that the same was not in court, and that appellant had applied to the officers of appellee, signifying its willingness to accept the same, and that the officers had refused to pay it, and asked the court to renew the restraining order. Thereupon the railway company brought the money into court, and appellant accepted same, and, to use the language of the statement of facts, "in the presence of said district court" executed the paper which is as follows: "The Ft. Worth Ice Company v. Chicago, Rock Island & Tex. Ry. Co. (No. 7,825.) Received of the Chicago, Rock Island & Texas Ry. Co. $1,900.00, payment upon the claim of the Ft. Worth Ice Company and the Traders' National Bank for damages to the right of way to the land mentioned in the above suit; the said $1,900.00 being the money tendered into court by said railway company on the above cause, and mentioned in the pleadings, and being the amount awarded by the commissioners appointed by the county judge in the condemnation proceedings. Hogsett & Orrick, Attorneys for the Ft. Worth Ice Co., The Nat. Bank of Fort Worth, by J Y. Hogsett, V. P." The railway company had taken possession of the premises immediately after the order vacating the injunction. Upon the trial in the county court, jury was waived, and plaintiff, by supplemental petition, pleaded the facts above stated; and the court held that the appellant, by accepting the amount of the commissioners' award, waived its right to further prosecute its objections, and entered judgment accordingly. The third and fourth assignments specify this as error.

Our constitution provides that no property shall be taken for public use unless adequate compensation shall be first made or secured by a deposit of money. Article 1, § 17. In the case of Railroad Co. v. Clark (Mo. Sup.) 24 S. W. 157, upon which, and several other cases therein discussed, appellant relies, the statutes provided for the payment to the clerk of the amount assessed, for the party in whose favor the same was assessed, whereupon it should be lawful for the company to enter into possession of the property. It was there held that, such payment being for the...