Houston & E. T. R'Y Co. v. Adams

• Decision Date: 30 January 1883
• Docket Number: Case No. 1482.
• Citation: 58 Tex. 476
• Court: Texas Supreme Court
• Parties: THE HOUSTON & E. T. R'Y CO. v. MARTHA E. ADAMS ET AL.

58 Tex. 476

THE HOUSTON & E. T. R'Y CO.

v.MARTHA E. ADAMS ET AL.

Case No. 1482.

Supreme Court of Texas.

Jan. 30, 1883.

APPEAL from Polk. Tried below before the Hon. Edwin Hobby.

Appellee Martha E. Adams, joined by her husband John H. Adams, sued appellant for the title and possession of a tract of land described in the petition as containing sixty acres, and alleged to have been the homestead of appellees and their children; that the land had for a number of years been used by them to support themselves and their family by means of the corn and cotton and produce raised therefrom; that appellees have no other means for a support; that the premises were well improved, having valuable orchards, shrubbery, shade and ornamental trees, fences inclosing the same, improved and cleared lands in cultivation, with pastures and buildings; that thirty-five acres thereof were under a fence, used as a farm, twenty acres being rich, black, lime land, and fifteen acres of light soil; that from the twenty acres appellees relied for a support for themselves and their children, being worth for agricultural purposes $300 per year; that the value and worth of the remainder of said premises was dependent on the said twenty acres remaining as a portion thereof, and nearly valueless to appellees without it. That appellant unlawfully, and for the purpose of injuring appellees, did seize said premises; did throw down and destroy the fences thereof; “did make highways of travel through said premises; did turn horses, hogs and cattle into appellees' fields, garden and orchards, destroying them; did dig ditches and make embankments of earth through said premises, and through the entire length of said twenty acres; did make ten feet cut through said premises; did lay crossties and iron rails one thousand five hundred yards through and over said premises; did build five hundred yards of switches and side-tracks, a turn-table, a large depot and platform, a spacious boarding-house, family residence, kitchen and out-houses, all on said twenty acres; and did fence in said twenty acres, and convert the same to appellant's own use. Damages by the trespasses aforesaid, $10,000.”

Appellees alleged that appellant could have located its depot at a more suitable place for itself and the public, where the approaches to it would have been over sandy soil; that to harass appellees, it located its depot and made the improvements on the twenty acres of land, which, owing to its tenacious character, position as to the adjacent town of Moscow, and the balance of the premises, caused appellant and the public to so use appellees' premises as to destroy the value of the same to appellees, to their damage $10,000.

Prayer in the alternative: (1) For restoration of premises, for damages and injunction. (2) If first not granted, then that so much of said premises as appellant may be entitled to have condemned as right of way under the law of eminent domain, be designated by metes and bounds; that appellees have judgment therefor, and for all damages that they have received by reason of appellant's said trespasses upon said premises; for injunction and general relief.

The defendant company then pleaded:

1. The general issue.

2. A grant by plaintiff of a right of way through the land, fifty yards wide, which it was occupying, and to which its road-bed and improvements were confined.

3. That after the conveyance to appellant of the right of way, and after it had run a line indicating where it would build its road, plaintiffs orally agreed that if appellant would locate its road and build its depot at the place on their land then pointed out by them, they would donate to it that portion of their land known as the “black land field,” and would make it a conveyance thereof; provided it would reconvey to them certain lands previously conveyed to it by them, or by J. H. Adams; and that relying upon the agreement and contract, appellant had constructed its road and located its depot at the point selected and so pointed out, and offered to reconvey to them the lands, tendering to them in this plea such reconveyances. That it had constructed its improvements upon the land, at great cost and in good faith, and in reliance upon the contract, and plaintiffs should be compelled to perform their said contract specifically.

4. A plea in reconvention, alleging the necessity for it, and seeking the condemnation of the desired and stated amount of said land to appellant's use, upon its payment of the compensation therefor fixed by the judgment in said cause, if the court should hold it not protected by said verbal contract nor by the conveyance of the right of way. But that in no event ought its road-bed or other improvements upon the said land to be estimated in plaintiffs' favor in condemning the land, because the same had been built thereon in good faith, and in express reliance upon the conveyance and the verbal agreement aforesaid.

Appellees (plaintiffs below) demurred to so much of the answer of defendant as set up a parol contract to convey a part of the land to it, and so much of it as sought to condemn the land to its use. The court overruled these exceptions, and to this ruling plaintiffs excepted. They then denied generally and specially the allegation of the answers.

The verdict and judgment are shown in the opinion. The charge is too lengthy for insertion, but its general character is stated in the opinion.

Hutcheson & Carrington, for appellant.

James E. Hill, for appellee.

I. The finding of the jury is upon the issues joined between the parties, the admissions of appellees in their pleading, the evidence adduced upon the trial, and the charge of the court. The pleadings raised the following issues: (1) As to the validity of the right of way deed of fifty yards; this the jury found for appellant. (2) As to a verbal contract between the parties granting appellant's twenty acres of land; this the jury found in favor of appellees. (3) As to trespass by appellant upon appellees' property; this the jury found against appellant and assessed appellees' damages at $1,500. Appellant set up in its answer the right of way deed above referred to, alleging as follows: “And that the said grant gave defendant the right to so use and occupy a strip of land through said property fifty yards wide. That defendant has occupied and confined its road-bed, tracks and buildings to the strip of land so deeded to it by plaintiffs, fifty yards wide.”

II. The charge of the court giving the text of the statute as to eminent domain did not “confuse the minds of the jury in endeavoring to apply it to the facts of the case.”

III. There is competent legal evidence to sustain the verdict of the jury, and this requires that the case be affirmed. Texas & St. Louis R'y Co. v. Willis, Roberts & Son, Tyler Term, 1882; Willis v. Lewis, 28 Tex., 191;Guerin v. Patterson, 55 Tex., 127;Stroud v. Springfield, 28 Tex., 676;Latham v. Selkirk, 11 Tex., 321;Ables v. Donley, 8 Tex., 336;51 Tex., 553;1 Tex., 340;7 Tex., 587;22 Tex., 42;23 Tex., 83;27 Tex., 241;35 Tex., 28.

IV. Before a party can be heard to complain of the charge of a court, he must show that he excepted to the charge criticised, or tendered special instructions; and even then, to reverse a case, there must not only be in the charge a fundamental error, but it must have operated to the injury of the complaining party. G. H. & S. A. R'y Co. v. Delahunty, 53 Tex., 212;42 Tex., 220;2 Tex., 287;10 Tex., 137;12 Tex., 266;22 Tex., 220;28 Tex., 635;40 Tex., 112;44 Tex., 548;49 Tex., 622; Hall v. Dotson, 55 Tex., 515 et seq.

V. A right of way deed will not protect a railway company in committing a trespass on property not embraced in the grant; neither would such company be protected by such deed, if in taking possession of the...