Heilbron v. St. Louis Southwestern Ry. Co. of Texas

• Decision Date: 05 November 1908
• Citation: 113 S.W. 610
• Parties: HEILBRON et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

113 S.W. 610

HEILBRON et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.^†

Court of Civil Appeals of Texas.

November 5, 1908.

Rehearing Denied November 19, 1908.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Action by Louis Heilbron and another against the St. Louis Southwestern Railway Company of Texas. From a judgment for defendant, plaintiffs appeal. Affirmed.

Hart, Mahaffey & Thomas, for appellants. Glass, Estes & King, for appellee.

HODGES, J.

On the 12th day of June 1907, the appellants, Louis Heilbron and M. C. Wade, began this suit in the district court of Bowie county, seeking to recover of the appellee damages in the sum of $10,000, which, it is alleged, resulted from the deepening and widening of a cut in the appellee's right of way adjacent to their property. The J. W. Johnson survey is a tract of land near the city of Texarkana, and was originally patented to Mrs. Ball and Mrs. Estes, both of whom were married women at the time. Some time thereafter, and during the year 1881, Mrs. Ball, joined by her husband, conveyed to the Texas & St. Louis Railway Company, for a recited consideration, a right of way 100 feet in width, running practically east and west through the Johnson survey. For some reason Mrs. Estes did not join in this deed, nor does it appear that she ever, at any time thereafter, conveyed any of her interest in the right of way. We think, however, the record will justify the conclusion that she acquiesced in the conveyance made by Mrs. Ball, and never at any time thereafter made any claim to any part of the railway right of way. The remainder of this survey was held in common by Mrs. Ball and Mrs. Estes till about the year 1891, when they made a partition of this property between themselves. In making the division the joint owners seem to have recognized the conveyance theretofore made by Mrs. Ball to the railway company, and the boundaries of the property which they divided among themselves were made without any conflict with the railway right of way. The deed made by Mrs. Ball conveying the right of way was duly recorded, and thereafter all of the taxes were regularly paid upon the property by the grantee and its successors. The Texas & St. Louis Railway Company constructed a narrow gage line upon the right of way soon after, and about the time it was conveyed, and that line has been continuously operated up to the present time. Some time after its construction the gage was broadened, so that it is now what is called a "standard gage road"; and the appellee, the St. Louis Southwestern Railway Company of Texas, has succeeded to all of the rights and franchises of the railway company to which the land was originally conveyed by Mrs. Ball. In 1904 the appellants for a valuable consideration acquired title to a portion of the Johnson survey, through Mrs. Estes, to whom that portion had been allotted in the partition before mentioned. The tract which they so acquired was located a few miles west of the city of Texarkana, on the north side of the appellee's right of way, at a point called Red Cut; this being on an elevation sloping from the north to the south, and where the railway entered a cut. This cut was variously estimated as being at that time from 4 to 6 feet deep at the deepest point. At the time of this purchase there was an old road that ran along on the north side of the appellee's right of way at Red Cut. Some of the witnesses testified that it was partly or wholly on the right of way of the railway company at that point. After the purchase of this tract of land by the appellants, they laid it off into blocks and town lots, providing for streets and alleys in the usual way, and designated it the "Red Cut Addition to the City of Texarkana." In platting the land the appellants laid off and dedicated, as one of its streets or highways, a strip 20 feet in width on the south side of their tract and adjacent to the north line of the railway right of way and parallel therewith. This was called Britton avenue. In June, 1905, the appellee railway company determined to lower the grade of its roadbed at that point, and for the purpose of carrying that into execution made considerable excavations on its right of way, both in the depth and the width of the cut. The testimony shows that after the work was completed the cut was about 15 feet deep at the deepest place, and that it had been widened on the north side until it was approximately from 36 to 42 feet from the center of the track, and was within from 8 to 12 feet of the north boundary line of its right of way. The wall on the north side, after the excavation, was left in a perpendicular condition. It is also shown that practically all of the old road which formerly ran along on the appellee's right of way had been destroyed by the excavation. It is also shown by the evidence that this excavation was reasonable and necessary; that the grade of the railroad at that point was too high, and that the company determined to lower it; that it became necessary to widen the cut in order to lay a temporary track while the roadbed was being lowered, in order to prevent interference with travel. The appellants claim that the old road which ran along on the south side of their property, and which, together with the strip 20 feet wide, constituted Britton avenue, was a public highway; and their recovery is based upon the depreciation in the value of their property occasioned by the destruction or serious interference with this highway. It is alleged by the appellants that the old road had long been dedicated to public use; that in making the excavations before mentioned the railway company had destroyed that road, and rendered the use of Britton avenue, or that portion which remained, dangerous, and that the cut, as it then existed, was a nuisance. At the conclusion of the testimony the court instructed a verdict for the railway company, and from the judgment so entered this appeal is prosecuted.

The only assignment of error presented in the record complains of the peremptory instruction directing the verdict for the defendant. The owners of the property testified upon the trial that, since the excavations made by the railway company at Red Cut, the market value of their property has greatly depreciated, estimated at about one-third of its original value. In order, therefore, to sustain the judgment of the trial court, it is essential that the facts show this to be a case of damnum absque injuria. As a basis for their right of recovery, the appellants urge that the old road on the north side of the railway right of way was a public highway, in which they, together with the general public, had an easement, and that its destruction seriously interfered with the travel to and from the addition which they had platted. They also claim that Britton avenue, the strip which they had dedicated, was menaced and rendered unsafe by the proximity of the cut and the process of caving of the banks since the cut was made. It is contended by them that the evidence adduced upon the trial which tended to establish those facts was of such weight that the issue made should have been submitted to the jury. If the old road before mentioned had been dedicated to the public, as claimed by the appellants, and was a public highway in the sense that the public generally had an absolute right to have it kept open and free from obstructions, the testimony showing as it does that it had been practically destroyed by the railway, then it must be admitted that the appellants had a cause of action, because we think the testimony would support a finding that the property had been damaged by reason of that fact. The issue, therefore, is whether or not the railway company had the right to destroy the old road. Owners of property abutting upon a public highway have a vested right in the easement created by the existence of the highway; and, when this highway is obstructed or destroyed, and the obstruction or destruction causes a special injury to the property owner beyond that which results to the public generally, such owner has a cause of action against the aggressor. Dooley Block et...