Houston B. & T. Ry. Co. v. Hornberger

• Decision Date: 13 December 1912
• Citation: 143 S.W. 272
• Parties: HOUSTON B. & T. RY. CO. v. HORNBERGER.
• Court: Texas Court of Appeals

143 S.W. 272

HOUSTON B. & T. RY. CO. v. HORNBERGER.

Court of Civil Appeals of Texas. Galveston.

December 13, 1912.

On Motion for Rehearing, January 18, 1912.

Appeal from Harris County Court; Clark C. Wren, Judge.

Condemnation proceeding by Houston Belt & Terminal Railway Company, against Jacob Hornberger. From the judgment, plaintiff appeals, and defendant cross-appeals. Reversed and rendered on direct appeal; affirmed on cross-appeal.

Andrews, Ball & Streetman and A. L. Jackson, for appellant. Campbell, Sewall & Myer and Ross & Wood, for appellee.

McMEANS, J.

Appellant, Houston Belt & Terminal Railway Company, as plaintiff below, on the 20th day of June, 1910, presented to the county judge of Harris county, Tex., its written petition and statement against Jacob Hornberger, as defendant below, setting forth the necessary facts required by the statutes in such cases, seeking to condemn as right of way for its railroad a strip of land 50 feet wide, containing 1.65 acres of land, belonging to defendant, being part of a 75-acre tract of acreage property belonging to said Hornberger, near Houston, located on Buffalo bayou, alleging that plaintiff and defendant had been unable to agree upon the value of the property to be taken, or the damages to the remainder of said tract, and praying that the judge appoint special commissioners, as provided by law, to hear the evidence, assess and award damages, etc. Upon said petition, the county judge indorsed his order on June 20, 1910, appointing three disinterested freeholders of Harris county as special commissioners to assess the damages incident to the taking of the land for the purpose stated in said petition, as provided by law. Thereupon the commissioners so appointed caused notice of hearing to be duly issued and served upon the defendant, Jacob Hornberger, who thereupon in due time, filed his answer. After full hearing, the commissioners rendered their decision, July 2, 1910, awarding the defendant, Jacob Hornberger, as the value of the strip of land taken, and damages to the remainder of said land, the sum of $1,600, and adjudged the costs against the plaintiff. Defendant, Hornberger, thereupon announced his objections to the findings and award of the commissioners, and filed his formal objections thereto. After the award of the commissioners, the plaintiff made formal tender to the defendant of the amount so awarded, together with costs, as provided by law, which tender was refused, and, defendant's counsel having announced his objections to the award, the plaintiff duly deposited in the registry of the county court with the clerk thereof, as provided by law in such cases, the sum of $3,200, and paid to the clerk the proper amount to cover the costs of said proceeding, and also filed and deposited with the said clerk a bond, as provided by law, in the sum of $500, for the security of the further costs that might be awarded, and thus complied with the law which provides for taking possession of land in such cases, pending further proceedings.

The proceedings having been removed by defendant, for trial, into the county court, plaintiff, in response to exceptions of defendant, filed its first amended original petition, on which the subsequent trial and other proceedings were had, alleging, in substance, the following facts: That plaintiff was a terminal railway company, duly chartered under and by virtue of the act of the Texas Legislature, known as chapter 109 of the General Laws of 1905, entitled, "An act to amend section 53, article 642, chapter 2, title 21, of the Revised Statutes of the state of Texas," and that plaintiff also was entitled to all the rights, powers, privileges, and immunities created and existing under and by virtue of an act passed by the Thirtieth Legislature (Acts 30th Leg. c. 157) of the state of Texas, and known as "An act to amend section 53, article 642, chapter 2, title 21, of the Revised Statutes of the state of Texas, as amended by chapter 109 of the General Laws of Texas, 1905," and had the right of eminent domain; that plaintiff, under and in accordance with its charter powers and duties, had acquired and constructed and owned a track of railroad, extending between the railroads of the Trinity & Brazos Valley Railway Company and the Beaumont, Sour Lake & Western Railway Company, situated to the north and northeast of the city of Houston, said track being approximately 4.77 miles in length, and, at the point known as "Belt Junction," plaintiff, in the performance of its functions, had established a railroad yard, with trackage facilities, and from such point had constructed and owned a track extending through and upon certain streets of the city of Houston, with the consent of said city, and passing by its certain freight and passenger stations or depots near the center of said city of Houston, thence extending to a point south of the city of Houston, at which it intersected the main line of the Gulf, Colorado & Santa Fé Railway, at what was known as the "south yards," at which point the plaintiff also had for its corporate purposes certain sidings and other tracks constituting what was known as the "south yard"; that plaintiff, acting under its corporate powers, had made and entered into contracts with four certain railroad companies which operated trunk lines of large and extensive mileage into and terminating at the city of Houston, to wit, the Gulf, Colorado & Santa Fé Railway Company, the Trinity & Brazos Valley Railway Company, the St. Louis, Brownsville & Mexico Railway Company, and the Beaumont, Sour Lake & Western Railway Company; that the said railway companies having and controlling large business as common carriers of passengers and freight destined to and away from Houston, as a terminus and transfer point, and having no adequate terminal tracks or facilities at Houston for the proper transfer and handling, and other terminal service at said point, the plaintiff, under contract, has undertaken to perform all such terminal service for said companies, which consisted in taking charge of the trains and cars of freight reaching plaintiff's south yard from the Gulf, Colorado & Santa Fé Railway Company and the St. Louis, Brownsville & Mexico Railway Company, and reaching the yard at Belt Junction, northeast of Houston, from the Beaumont, Sour Lake & Western Railway Company and the Trinity & Brazos Valley Railway Company, and in making up trains and transferring cars of freight back and forth between the said companies, according to the destination and routing thereof, and in furnishing trackage and other facilities to the passenger trains of said companies, and for the mutual exchange and handling of business among them; that the result of such contract and arrangement was mutually advantageous, expeditious, and economical, both to the said railway companies, as common carriers, and to the traveling and shipping public; that, in order to facilitate and expedite the handling of such business on behalf of the said railroad companies, the defendant, with the consent and authority of the city of Houston, has acquired properties in and near the center of said city, and has established thereon certain freight stations and depots and its passenger depot, serving the purpose of a Union Depot for the said four railroad companies and others that may desire to arrange for the use thereof, which said freight and passenger depots have been and are maintained by plaintiff under its charter powers and franchises as regular stations and depots for the receipt and delivery of freight and passengers; that heretofore all of the freight and passenger business handled by plaintiff for the said railroad companies has been transported between said Belt Junction and the south yard over the said railroad constructed between said points, extending through and across certain streets in the city of Houston; that, on account of constantly having to stop in passing over and across streets in said city, and in crossing over the tracks of other railroads, it is difficult and burdensome for plaintiff to handle its said traffic, and that as a result thereof the traffic frequently becomes congested, and complaints are constantly made by the traveling public of the obstruction of streets thereby, all of which causes, together with the increase in freight traffic of the said railroad companies, will increase the difficulty and obstacles in handling said freight and passenger business, and transferring the same by means of the said tracks heretofore constructed and used through the streets of said city, and along and by its said freight and passenger depots, as aforesaid, and for the purpose of expedition, and in the interest of economy, and in order that the plaintiff may more efficiently and effectively conduct and transact its business in the handling and transferring of freight traffic, and in the interest of the public, it has projected and determined upon constructing and operating a new and additional line from the intersection with the railroad of the Beaumont, Sour Lake & Western Railroad Company, at the northeast of Houston, in a southerly direction, beyond the limits of the city of Houston, crossing Buffalo bayou near the turning basin of the Houston ship channel, and extending through the property of the defendant, Hornberger, and terminating at the plaintiff's south yard; that said new line will have a mileage of approximately 9.77 miles; that it is the purpose of plaintiff to use this new line principally in the handling, transfer, and delivery of freight traffic delivered to and received by it as a terminal railroad company, so that it may more expeditiously and economically handle said freight traffic, and relieve the said traffic extending through the city of Houston, and by the said freight and passenger depots, of the congested condition heretofore and now existing.

In order to meet some exceptions of the defendant, the amended...