Gulf, C. & S. F. Ry. Co. v. Kerfoot

• Decision Date: 17 June 1892
• Citation: 20 S.W. 59
• Parties: GULF, C. & S. F. RY. CO. v. KERFOOT.
• Court: Texas Supreme Court

20 S.W. 59

GULF, C. & S. F. RY. CO. v. KERFOOT.

Supreme Court of Texas.

June 17, 1892.

Appeal from district court, Brown county; J. W. TIMMINS, Judge.

Condemnation proceedings by the Gulf, Colorado & Santa Fe Railway Company against J. D. Kerfoot. Judgment for defendant. Plaintiff appeals. Affirmed.

J. W. Terry, for appellant. Thos. Maples and Bell & Drane, for appellee.

GAINES. J.

The appellant on July 25, 1885, filed two applications with the county judge of Brown county to condemn a right of way over two tracts of land, known, respectively, as the "E. M. Pease" and the "Nathan Brookshire" surveys, each of which was alleged to belong to the appellee, J. D. Kerfoot, and F. H. Kerfoot. The same commissioners were appointed in each case, and, though the applications were to condemn each tract separately, they rendered but one award, assessing the damages to both at $125 in the aggregate. Thereupon the appellant filed the following objection: "Now comes J. D. Kerfoot, and excepts to the award of the commissioners appointed by the honorable judge of this court to fix the damage done him by the proposed taking of right of way for the road of the above-named plaintiff over defendant's tract of land known as the `E. M. Pease' one-third league of land, because the sum of $125 awarded as compensation for such taking is wholly insufficient. Defendant says that he uses said tract of land as a sheep and horse ranch, and the right of way over the said tract as laid out by plaintiff runs through a corner of said tract, and cuts off in the shape of a triangle about 150 acres of said tract, and renders the same entirely valueless to defendant, and by reason of its shape renders it of little value to any one else; that defendant's damages, on a reasonable and fair estimate, are not less than the sum of $1,000." On account of the disqualification of the county judge, the case was transferred to the district court, in which the judgment was rendered from which the appeal is prosecuted. Before the case was called for trial, the appellee was allowed to file an amended objection to the award, in which he complained, in substance, that the award was insufficient in amount, both as to the Pease survey and as to the Brookshire tract, and allowed that his damages amounted to $2,000. This pleading was excepted to by the appellant upon the ground that, since the appellee had failed to object to the award as to the Brookshire survey at the time it was made, it was too...