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

• Decision Date: 26 November 1900
• Parties: GULF, C. & S. F. RY. CO. v. BRUGGER.
• Court: Texas Court of Appeals

Page 556

59 S.W. 556

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

Court of Civil Appeals of Texas.

November 26, 1900.

Appeal from Austin county court; John P. Bell, Judge.

Proceedings by the Gulf, Colorado & Santa Fé Railway Company against A. Brugger to condemn land for railway purposes. From a judgment in favor of defendant, plaintiff appeals. Reversed.

J. W. Terry and Chas. K. Lee, for appellant. J. S. Brewer and Wolters & Lane, for appellee.

GILL, J.

This was a proceeding brought by appellant to condemn 14.24 acres of appellee's land for the purpose of constructing thereon a reservoir and water tank for use in connection with a roundhouse and division terminals located by the appellant about one mile south of the town of Bellville, in Austin county. It was averred in the petition that appellant had offered appellee $700 as compensation for the land proposed to be taken, and to cover such incidental damage as he might suffer to the remainder of his tract of land by reason of the condemnation. A trial before the commissioners appointed by the county judge resulted in an award of $2,278.75. To this the appellant made timely objection, and appealed to the county court. A trial by jury resulted in a verdict and judgment for $900 for the value of the land taken, and $900 for damages to the remainder of the land. The appellee admitted in his pleadings appellant's power to condemn for the purpose named, and that the land in controversy was necessary for the use of appellant in building and maintaining a reservoir and tank. It was also admitted, in like manner, that appellant had offered $700 in full of all damages; that appellee had refused to accept that sum, and affirmatively asserted the right to a much larger sum as compensation. It thus appears that the only question at issue was the amount of compensation to which appellee was entitled for the damage suffered by him as a result of the exercise of a lawful right on the part of appellant. A jury has awarded appellee $1,800 on conflicting evidence, and the trial judge has signified his approval of the verdict by refusing to disturb it. We make no further comment on the evidence than to say we do not feel authorized to disturb the judgment on the facts. In almost every case involving questions of value the estimates of witnesses differ more or less, and that feature is present in this case. It is evident that the jury accepted the estimate of no witness or set of witnesses, the verdict being for a less sum than would result from a calculation on the basis of the testimony of appellee's witnesses, and somewhat greater than would result from an acceptance of the statements of appellant's witnesses as exact. The inquiry, then, is: (1) Does the record disclose error? (2) If it does, is it of such a nature as probably interfered with a just and lawful award?

By the third assignment of error appellant complains that the trial court erred in permitting defendant to open and conclude the argument before the jury. It is contended by appellant that the defendant below made no such admission in his pleading as would entitle him to the right. The nature of those admissions is disclosed in the statement of the case in the first part of this opinion. The position of appellant upon this question seems to be that the railway company, in a proceeding of this sort, is an actor upon every issue, including the amount of damages to be adjudged, and that the admissions of defendant would not have entitled the company to a judgment if no evidence were adduced; citing Sanders v. Bridges, 67 Tex. 92, 2 S. W. 663. In the case cited the rule is declared to be that, in order for a defendant to have the right to open and conclude, the admission must be of such a nature as to entitle plaintiff to a judgment, if no evidence is offered by either party. The case was not one of condemnation, but it lays down the correct rule, and the difficulty remaining is to ascertain whether the rule should be applied to cases of this character, and, if so, whether it has been complied with in this case. In Mills, Em. Dom. § 92, it is said: "The owner of the land has the affirmative of the issue as to value, and hence has the right to open and conclude, without regard to which party inaugurated the proceedings or prosecuted the appeal." This seems to us to be necessarily true in the very nature of things, and the weight of authority outside the state seems to accord with this view. See Railway Co. v. Day, 3 Tex. Civ. App. 355, 22 S. W. 538, and authorities cited. It is to the interest of the railway company to minimize the damage consequent upon its act. It has the negative of the inquiry, and, while the rule might be made otherwise by legislation, the fact cannot be changed either by legislation or judicial decision. Since we are cited to no decision by the court of last resort of this state holding otherwise, we might rest the decision of this question upon the authorities cited and reasons given above, and hold that the trial court committed no error in permitting the defendant to open and conclude. But the court of criminal appeals of this state, during the time it had appellate jurisdiction of a certain class of civil cases, held that, under the peculiar wording of our statutes governing condemnation proceedings, the railway company in a condemnation suit was the plaintiff upon every issue, and that the defendant had not the right to the opening and conclusion, in the absence of such admissions as were requisite to...