Houston, E. & W. Tex. R'Y Co. v. Adams

• Decision Date: 06 February 1885
• Docket Number: Case No. 1895.
• Citation: 63 Tex. 200
• Parties: THE HOUSTON, EAST & W. TEX. R'Y CO. v. M. E. ADAMS ET AL.
• Court: Texas Supreme Court

63 Tex. 200

THE HOUSTON, EAST & W. TEX. R'Y CO.

v.M. E. ADAMS ET AL.

Case No. 1895.

Supreme Court of Texas.

Feb. 6, 1885.

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

This cause was formerly before the supreme court on appeal (58 Tex., 476).

After the decision of supreme court on former appeal, plaintiffs (appellees), on the 1st day of December, 1883, filed their first amended supplemental petition, excepted specially to defendant's original answer, filed January 4, 1883, and “by way of supplemental petition and replication,” in substance alleged that the conveyance of fifty yards right of way to defendant, by plaintiffs, as set up by defendant's answer, if ever made (which was denied), was made not upon the consideration expressed in said deed, but upon another and different consideration; that said conveyance was obtained by defendant from plaintiffs by means of false, deceitful and fraudulent representations, pretensions and promises wilfully made by defendant to plaintiffs with intent of defendant to deceive and defraud plaintiffs; that plaintiffs believed and relied upon them, and were by them induced to sign an instrument in writing, the terms of which conveyed to defendant a fee-simple title to a fifty yards right of way across plaintiffs' homestead tract of land; that the true consideration of such conveyance was that defendant should establish a depot at Moscow, in Polk county, upon plaintiffs' homestead tract of land, at a point “northerly from defendant's present depot at said town, and _____ varas therefrom, then pointed out by the parties and understood by them;” that this was the real consideration and not expressed in said deed, because plaintiffs placed confidence in the representations by defendant; that defendant failed to comply with its contract and representations and promises aforesaid to plaintiffs, and did fraudulently, in violation thereof, erect, build and establish its depot at Moscow, at a different place from the place contracted with plaintiffs to build the same, and “has, to this day, maintained its depot at said different place;” that if defendant had established and maintained its depot at the point it agreed to establish and maintain it with plaintiffs, as aforesaid, then plaintiffs would have been benefited thereby by the peculiar location and the enhanced value of their property, in, to wit, the sum of $5,000; that defendant, disregarding its contract with plaintiffs, after it had obtained the right of way deed fraudulently changed its line of road and established its depot so as to damage instead of benefit plaintiffs; “therefore plaintiffs say that the consideration for which said right of way deed was given has failed, and defendant has fraudulently violated the material part of its contract with plaintiffs.”

Plaintiffs further alleged that the right of way deed did not convey a right of way or easement, but was by its terms a fee-simple deed; that the land claimed by defendant by virtue of it was a part of plaintiffs' homestead, and was such at the time the deed bore date; that plaintiff M. E. Adams, wife of plaintiff John H. Adams, never privily acknowledged that deed as having been executed as the laws require for conveyance of the homestead; that M. E. Adams always refused to acknowledge that deed unless defendant would comply with its contract with plaintiffs. Plaintiffs prayed that the deed be annulled and canceled.

The allegations in this part of the said pleading seem to have been established by the evidence.

The court below seems by its charge to have disregarded the claim for the cancellation of the deed.

Plaintiffs further alleged in substance that, since the institution of this suit, defendant had entered upon and removed from plaintiffs' homestead tract of land and appropriated to defendant's own use two houses, fixtures on the land, the property of plaintiffs, of value $500, and two plank fences and posts thereon, value $200, for which damage was claimed.

That by reason of the wrongs and trespasses of defendant upon plaintiffs' said premises they were damaged by defendant in the year 1881, to wit: to oat crop, $480; to pasturage, $75; by defendant's appropriation and destruction of plaintiffs' rails, $22.50. That by reason of defendant's wrongs and trespass on the premises, etc., damage in 1882 to plaintiffs, by being by defendant deprived of making a crop on their said farm, by reason of defendant's possession of the same and destruction of plaintiffs' fences, $1,200. In same way in 1883, $1,100.

That in case the court should hold defendant had the right to take possession of right of way, then plaintiffs alleged that, by reason of defendant's negligence and want of care in taking possession of same, and in constructing its road over plaintiffs' premises, plaintiffs were damaged $5,000. That is to say, defendant, in taking possession of the right of way, destroyed plaintiffs' fences--value $200. Defendant neglected and refused to build stock gaps and cattle-guards at the entrance to and exit from plaintiffs' farm, through which said railway runs, as alleged in plaintiffs' original petition, and had so neglected and refused to erect such stock gaps and cattle-guards “to this day,” to plaintiffs' damage $2,000. Defendant having seized and taken possession of plaintiffs' farm neglected and refused, and still neglects and refuses, to fence in the right of way, so as to protect plaintiffs' farm from stock and the traveling public, whereby plaintiffs had been prevented from making a crop on or using the farm since defendants entered the same, to damage of plaintiffs each year $1,200. That when defendant took possession of plaintiffs' said farm, defendant, with great negligence and intending to injure plaintiffs, tore down plaintiffs' fences and allowed stock, cattle, hogs, etc., to enter plaintiffs' farm, garden, orchards and inclosures, and greatly damage the same by breaking down the trees and depredating on plaintiffs' lands, inclosed crops, orchards and gardens, to plaintiffs' damage $2,000. Allegations of appropriation of rails, making roads and thoroughfares through plaintiffs' inclosed lands, etc., damage $500. That defendant seized and took possession of lands of plaintiffs not on the right of way, and built houses thereon without plaintiffs' consent, but “well knowing the facts in plaintiffs' pleadings, in this suit set forth, and that plaintiffs claimed the land on which said buildings were erected.” That since the institution of this suit, defendant has taken down and removed said houses, to plaintiffs' damage as alleged.

Verdict and judgment for the plaintiffs for $1,000.E. P. Turner, for appellant, on measure of damages, cited: Sabine & East Texas R'y Co. v. Joachimi, Supreme Court, Galveston term, 1883; W. & W. Cond. Reps., secs. 298, 482 and 1139; Missouri Pac. R'y Co. v. Cox, Tex. Law Review, May 13, 1884, No. 3, vol. 19, p. 304; Foote v. Merrell, 54 N. H.; Gresham v. Taylor, 51 Ala., 505; 2 Thompson on Neg., 1262, and cases cited; Sedg. on Dam., 34 and 82 et seq.

That the land-owner should have taken steps to protect himself against threatened damage, he cited: Missouri Pac. R'y Co. v. Cox, Tex. L. Rev., vol. 3, No 19, p. 389, May 13, 1884; R. S., art. 4243; Field on Damages, secs. 21, 128, 129 and 130; Hassa v. Junger, 15 Wis., 598; Loker v. Damon, 17 Peck, 284; Thompson v. Shattock, 2 Met., 615; Hamilton v. McPherson, 28 N. Y., 72; Davis v. Fish, 1 Greene (Iowa), 407; Harmon v. Berkley, 1 Strobh. (S. C.), 548; Mather v. Butler County, 28 Ia., 253.

Hill & Corry, for appellees, on the proposition that the plaintiffs were entitled to set up, by supplemental petition, and recover damages for all the wrongs, fraud and negligences of the company, cited: Culbertson v. Cabeen, 29 Tex., 254; Sedgwick on Damages (6th ed.), bottom of p. 118, citing Wilcox et al. v. Ex'rs of Plummer, 4 Pet., 172 and 182; Field on Damages (2d ed.), p. 48, sec. 51; also as to remote and proximate cause, see Field on Dam., pp. 528, 529, and notes, citing Fleet v. Toledo, P. & W. R. Co., 59 Ill., 349 (overruling and sharply criticising Ryon v. N. Y. Central R. R. Co., 35 N. Y., and Penn. R. R. Co. v. Keer, 62 Pa. St.); Kellogg v. Chicago & N. W. R. R. Co., 26 Wis., 223; Pierce on Railroads, pp. 216, 230, 310, 311, 322, 323.

That it was a continuing duty of the company to protect the plaintiffs' field with proper cattle-guards, down to the filing of the last pleading claiming damages, they cited: R. S., arts. 4240, 4242, 4244; H. & G. N. R. R. Co. v. Meador, 50 Tex., 86, and syllabus, sec. 3; Tex. & Pac. R. R. Co. v. Dudley, W. & W. Ct. App. Civil Cases, p. 271, sec. 540.

There being evidence to sustain the verdict and judgment, they must be affirmed, citing: 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.

STAYTON, ASSOCIATE JUSTICE.

The petition must be taken as an entirety in determining whether the demurrers were properly overruled.

The petition denies that the right of way through the land of appellees was ever acquired by the appellant, and this became an issue in the case; and we may now say, without further considering it, that in view of this issue the court did not err in admitting such evidence of damage to the entire tract of land as would have been admissible had the proceeding been one to condemn the land through a procedure provided by the statute.

The charge of the court correctly submitted the law on such an issue to the jury, and their finding, fully supported by the evidence, was in favor of the appellant, and this renders it unnecessary to further notice that branch of the case; for the appellees took nothing under it.

The averments in reference to the...