Houston & T. C. R. Co. v. Postal Telegraph Cable Co.

• Decision Date: 23 March 1898
• Citation: 45 S.W. 179
• Parties: HOUSTON & T. C. R. CO. v. POSTAL TELEGRAPH CABLE CO.
• Court: Texas Court of Appeals

45 S.W. 179

HOUSTON & T. C. R. CO. v. POSTAL TELEGRAPH CABLE CO.

Court of Civil Appeals of Texas.

March 23, 1898.

Appeal from Dallas county court; Kenneth Force, Judge.

Condemnation proceedings by the Postal Telegraph Cable Company against the Houston & Texas Central Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

R. De Armond and Head, Dillard & Muse, for appellant. J. H. McLeary, for appellee.

NEILL, J.

This action was brought by appellee, a corporation of the state of Texas, against appellant, a corporation of the same state, to condemn to its use an easement for the construction and maintenance of appellee's telegraph line; a part of the railroad's right of way extending from the city of Dallas, Dallas county, through that county and the counties of Collin and Grayson, to a point in the city of Sherman. The appellee, in accordance with the provisions of article 4447, Rev. St. 1895, filed with the county judge of Dallas county a statement in writing showing the property sought to be condemned, and the object for which the same was sought to be condemned, etc., whereupon the county judge appointed three disinterested freeholders of Dallas county as special commissioners to assess the damages. The commissioners thus appointed, having appointed a day and place of hearing, issued notice (which was served upon the parties and returned), proceeded in accordance with law to determine the damages, and, having assessed the same at $207.25, reduced their decision to writing, which was dated, signed, and filed, together with all other papers connected with the case, with the county judge, as required by article 4463, Id. The appellant, within 10 days after the decision of the commissioners was filed, filed its opposition thereto in writing, setting forth the particular causes of its opposition, whereupon the cause was docketed and tried in the county court, and the trial resulted in a judgment condemning the land to appellee's use, and awarding appellant $237 damages.

Appellant, in its first assignment of error, complains of the court's overruling the plea to its jurisdiction. This plea sets forth the fact that appellant's right of way extends from the city of Houston, Harris county, to the city of Denison, in Grayson county; that it is composed of various parcels of land, having no connection with one another, except that they are embraced in the right of way; that the principal office of appellant was not in Dallas county, but in the city of Houston, Harris county, Tex.; that in the town of McKinney the right of way of appellant was not used solely by it, but that appellant owned it in connection with the Sherman, Shreveport & Southern Railway Company. It showed that the counties of Collin and Grayson were duly organized, and negatived every fact which would give appellee the right to proceed in Dallas county to condemn lands in the counties of Collin and Grayson, unless it be that part of the right of way sought to be condemned is situated in Dallas county. The question then for solution under this assignment is, did the fact that part of the property sought to be condemned lay in Dallas county warrant proceedings in that county to condemn the parts of the right of way situated in Collin and Grayson counties, as well as the part which lay in Dallas county? Telegraph companies "are also authorized to enter upon any lands, whether owned by private persons in fee or in any less estate, or by any corporation, whether acquired by purchase or by virtue of any provision in the charter of such corporation, for the purpose of making preliminary surveys and examinations with a view to the erection of any telegraph lines, and from time to time to appropriate so much of said lands as may be necessary to erect such poles, piers, abutments, wires and other necessary fixtures for a magnetic telegraph, and to make such changes of location of any part of said lines as may from time to time be deemed necessary, and shall have a right of access to construct said line, and, when erected, from time to time as may be required to repair the same, and may proceed to obtain the right of way and to condemn lands for the use of the corporation in the manner provided by law in the case of railway corporations." Article 699, Rev. St. 1895. By the statute providing for condemning lands by railway corporations, it is enacted that: "If such company and said owner [the owner of the land sought to be appropriated] cannot agree upon the damages, it shall be the duty of said company to state in writing the real estate and property sought to be condemned, the object for which the same is sought to be condemned, the name of the owner thereof and his residence, if known, and file the same with the county judge of the county in which such property or a part thereof is situated; provided, if the owner resides in either county in which a portion of the land is situated, the same shall be filed in the county of his residence." Article 4447, Id. As we have before stated, the proceedings in this case were instituted in Dallas county, in compliance with the provisions of the statute quoted. Prior to the 26th of March, 1885, the law required the statement to be filed with the county judge in which the property was situated, but at that time the article was amended by inserting the words "or a part thereof" after the word "property." This amendment was evidently made so the rule that, "when a part of a tract is taken, damages or benefits to the entire tract may be considered in estimating the damages," might be observed and applied in one proceeding. When the entire tract lay in several counties, and separate proceedings were required in each county, it was practically impossible to enforce this rule in assessing the damages. If the commissioners appointed in the several counties considered only the damages to the land in their respective counties, without regard to the entire tract, the rule would have been ignored. If they considered the damages to the part in the county where they were appointed, with reference to the entire tract, they could not, without anticipating the action of the commissioners sitting in other counties where parts of the tract lay, truly assess the damages. So the legislature thought it best to have the damages assessed by commissioners appointed by the county judge of the county in which the property, or a part thereof, is situated, and the whole matter in controversy disposed of by one tribunal. An entire tract of land, within the meaning of condemnation statutes, is, "in general, so much as belongs to the same proprietor as that taken, and is continuous with it, and used together for a common purpose." Lewis, Em. Dom. § 475. This definition is illustrated by the author by quotations from a number of cases cited in notes under the paragraph. The appellant's right of way, extending through the counties wherein a part of it is sought in this proceeding to be condemned to appellee's use, in our opinion, falls within this definition is an entirety, and must be regarded as a single tract of land; and, as a part of it is situated in Dallas county, the proceedings to condemn were properly instituted and prosecuted there. If the Sherman, Shreveport & Southern Railway owned jointly with appellant a part of the land lying in the town of McKinney, Collin county, the proceedings as to such company are merely nugatory, but are binding upon the appellant to the extent of its interest.

The sufficiency of the description of the land contained in appellee's written statement to the county judge was excepted to by appellant, and the exception sustained. The appellee then,—in order to meet the ruling upon the exception,—by leave of the court, amended the description; and, without appointing other commissioners to condemn the land, the court, over appellant's objections, proceeded with the trial of the...