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

• Decision Date: 29 May 1918
• Docket Number: (No. 7595.)
• Citation: 204 S.W. 443
• Parties: GULF, C. & S. F. RY. CO. v. BRYANT.
• Court: Texas Court of Appeals

Page 443

204 S.W. 443

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

(No. 7595.)

Court of Civil Appeals of Texas. Galveston.

May 29, 1918.

Rehearing Denied June 20, 1918.

Appeal from District Court, Burleson County; R. J. Alexander, Judge.

Action by I. B. Bryant against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Terry, Cavin & Mills and Jno. G. Greggs, all of Galveston, and Bowers & Bowers, of Caldwell, for appellant. W. M. Hilliard and A. B. Gerland, both of Caldwell, for appellee.

PLEASANTS, C. J.

This is a suit for an injunction and for damages, brought by appellee against appellant. The petition alleges:

That plaintiff owns and resides upon a tract of one acre of land situated in a suburb of the town of Caldwell in Burleson county known as West Caldwell. That plaintiff's said home adjoins the right of way of defendant company for a distance of about 100 yards, plaintiff's premises being west of said right of way and fronting thereon. That some distance south of plaintiff's premises a public road known as the Caldwell and Brenham road crosses the defendant's railroad, and that another public road known as the Caldwell and Deanville road crosses defendant's railroad about one-third of a mile north of plaintiff's home. That for more than 30 years prior to the institution of this suit there had been a road along defendant's right of way in front of plaintiff's premises, connecting the two public roads before mentioned. That said road along the right of way had been used by the public generally, continuously, and openly as a road for travel and traffic in buggies, wagons, and vehicles of all kinds. "That during all of said time the road was always kept in good condition for travel. That said use of said road as mentioned was during said time continuously of a nature and character reasonably calculated to put defendant on notice that said road was being so used adversely to the rights of the defendant. That defendant had notice of the fact that said road was, during all of said time mentioned, so used by the plaintiff particularly and the public generally, adversely to its rights in said land over which said road was and run. That at the time plaintiff purchased his said home, because of defendant's conduct and attitude toward the use of said road by the public in the manner above set out, he had reason to believe, and did believe, that the defendant regarded that the public had acquired an easement in said road, and that said road had become a public road by prescription, and that the defendant would not close said road." "That on or about the 1st of November, 1915, defendant by force unlawfully entered plaintiff's home, and removed and tore down his northeast boundary line fence, same being the division fence between the plaintiff's said land and home and the defendant's right of way, and a fence that plaintiff had placed there in fencing his said home over 10 years prior to said date, November 1, 1915, and destroyed his said fence. That the defendant built a cattle guard just north of where the Caldwell and Brenham road crosses defendant's said right of way and railroad track, and built a strong four-wire fence from said cattle gap to both fences inclosing its right of way; built said fence from said cattle gap to its west boundary line; thence up its right of way following its western boundary line to plaintiff's east corner; thence continuing following plaintiff's east boundary line, same being defendant's west boundary line, the whole distance between plaintiff's land and defendant's right of way; thence continuing up defendant's right of way following its west boundary line to the point where the Houston & Texas Central...