Houston North Shore Ry. Co. v. Tyrrell, 7082.

Citation98 S.W.2d 786
Decision Date12 November 1936
Docket NumberNo. 7082.,7082.
PartiesHOUSTON NORTH SHORE RY. CO. et al. v. TYRRELL et al.
CourtSupreme Court of Texas

Since the question certified by the Court of Civil Appeals is in substance whether the pleadings and evidence stated in the certificate precluded the condemnation sought by appellants, it is necessary to set out the entire certificate and the copy of the deed attached to it as an exhibit. They are as follows:

"The question of law hereinafter certified arises out of the facts appearing in the record of this cause, now pending undetermined here on appeal from the County Court at Law of Harris County, which— for the purpose of the certificate—may be restated as follows:

"The Houston-Goose Creek Interurban, the corporate name of which is Houston North Shore Railway Company, and its lessee, The Beaumont, Sour Lake & Western Railway Company, an ordinary steam railroad under the jurisdiction of the Texas Railroad Commission, and L. W. Baldwin and Guy A. Thompson, Trustees in Bankruptcy for both of those companies, pursuant to R.S. titles 52 and 112, articles 3264 et seq., and 6535 et seq., filed with the Judge of the County Court at Law of Harris County, Texas, their petition for condemnation of certain specifically described land, that is, the realty itself, being a strip 60 feet by 23,889 feet in Harris County, exclusive of improvements thereon and of a portion theretofore condemned. The land involved and its environs are shown on a blueprint appearing at page 588 of Vol. 3 of the Statement of Facts. The condemnees, named in the petition, are quite numerous. A complete list of them is set forth in an exhibit attached to the petition, they and their status, in epitome, being as follows:

"(1) H. C. Tyrrell, Trustee of Tyrrell & Garth Investment Company, a joint stock association, and that company itself, successors in title to the grantors in a certain deed, a copy of which is hereto attached, whereunder there was conveyed to an agent or trustee of the Houston North Shore Railway Company (Harry K. Johnson), an easement for electric interurban railroad purposes over the particular land sought to be condemned. Such deed contained certain restrictions requiring the railway company forever to maintain certain passenger railroad schedules on and over the land conveyed by the deed, which land, now fully improved for interurban railroad purposes and now being used for such purposes, is the land now sought to be condemned. Incidentally, these successors of the grantors, because of asserted violations of the restrictions, now claim to be the owners of the land in question and of all of the improvements thereon. The improvements are alleged to be worth $200,000.00. The contention is that there have been violations of the restrictions, in consequence of which, the forfeiture clauses of the deed operate to place title to the land and improvements in the successors of the grantors. The condemnors vigorously deny the condemnees' ownership of the improvements, and deny that the restrictions have been violated. Prior to the institution of these condemnation proceedings, these condemnees sued the condemnors in the district court of Harris County, claiming the land and the improvements, and that suit was pending when this case was started and when it was tried.

"(2) The grantee in the deed just mentioned (Harry K. Johnson), who took the deed and the land as an agent or trustee for the Houston North Shore Railway Company and then conveyed the same to that company subject to the same restrictions and provisions for forfeiture as were set forth in the deed to him, is also a condemned. He now claims the land and all of the improvements thereon; and, prior to the institution of these proceedings, sued in the district court of Harris County to recover the same, and that suit was pending when this suit was brought and when it was tried.

"(3) The mortgagees and lienholders, who had made loans to such grantors and this grantee, secured by mortgages and liens upon the land involved, are also parties. At least, one mortgagee of the original grantor claimed in these proceedings the right to have the recovery, if any, applied on his indebtedness, and filed pleadings to that effect.

"(4) There being a number of subdivisions of the land abutting upon the right of way in question, which were brought about by the original grantors and by their grantee and others, followed by sales of tracts in those subdivisions under instruments of conveyance making reference, for the purposes of description, to maps or plats showing the railroad on the land involved, such abutting owners were joined as condemnees upon the theory that possibly they became the owners of the fee if and when, in fact, a forfeiture came about. These abutting owners, in these proceedings, claimed the land in question and filed pleadings to that effect.

"(5) Those having liens or claims against such abutting property were also joined as condemnees on the theory that they had an interest if the abutting owners had an interest. The record shows that one of those, having a lien upon abutting property, formally answered in these proceedings. Some of the other lien holders with claims against the abutting owners answered orally before the Commissioners, and were present there where a written answer is not required.

"The list of defendants includes the `unknown owner or owners of every part of the land sought to be condemned in these proceedings.' These unknown owners were cited by publication, and were represented by counsel appointed by the court, as were also their unknown heirs.

"With the condemnees denying the condemnors' right to condemn, prolonged hearings were carried on before the Commissioners, who made a lump-sum finding of $3,764.00 for the land sought to be condemned. Nothing was allowed as for consequential damages to nearby lands.

"Still denying the right of the condemnors to condemn, an appeal was taken by the condemnees to the County Court at Law, where, upon the conclusion of the testimony of the condemnors, it was ordered that the condemnors take nothing by their petition, and that the cause be dismissed `for the reason that there was a failure to prove jurisdictional facts.'

"The condemnors' petition, as well as the proof they offered in support of it, showed upon the face thereof that they had thus obtained under the deeds from the Tyrrell Trust, the Tyrrell & Garth Company, and Harry K. Johnson, by agreement with these grantors, their title to the same strip of realty itself that they thus sought to condemn in this proceeding, and that, without having repudiated any of their rights under such deeds, or ever having abandoned the land itself, but, on the contrary, being still in possession of it and the improvements thereon, and still operating interurban cars over it, with the claim that they had always complied with the conditions imposed upon them in that deed and intended to so continue unless and until their obligations thereunder were modified or changed as a result of these condemnation proceedings, they yet asked that it be so condemned against those grantors, their successors, and assigns.

"Neither did their pleadings or proof show that any compensation for their existing rights or interests—other than such incidental ones as had resulted from the building and maintenance of the interurban pursuant to the copied deed—had ever been made or offered to any of the condemnees, nor were any proposed or tendered therein; on the contrary, the condemnors insisted that their right of condemnation existed without the making or tendering of any such compensation and notwithstanding both the stated conditions in the deed itself and the pleaded-fact that they still held and asserted their right to the property under it.

"The condemnors did, however, plead and offer proof to show that before instituting this condemnation proceeding they had entered into negotiations with the successors of their original grantors—that is, the Tyrrell & Garth Company—and with them alone of all the condemnees, in an effort to purchase the land before undertaking to condemn it, and that such efforts had failed; their proof as to the result of such negotiations was summarizd by their plenary-agent in that behalf in these statements: `Under no circumstances would I have paid the lowest figure that he ever asked. * * * The price the Tyrrells were willing to take was not acceptable to me with or without the releases.'

"Neither did the condemnors specifically plead that an effort to agree with the condemnees in advance on the value of the land to be condemned would have been futile, under a specification of the grounds for that averment, but their pleading simply was to the effect that they had failed to so agree with the condemnees, their averment upon that feature being in hæc verba this: `The plaintiffs cannot, and they have failed to, agree with said defendants, and each of them, on the value, etc.'; but the theory of their declared-upon action was that—while they thus had not made all the condemnees an offer for the land involved in advance, in fact none of them except the successors of the original grantors, Tyrrell & Garth Investment Company, as stated supra—since the record otherwise showed conclusively that certain others of the condemnees who had been cited...

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