Hutchinson v. International & G. N. Ry. Co.

• Decision Date: 10 June 1908
• Citation: 111 S.W. 1101
• Parties: HUTCHINSON et al. v. INTERNATIONAL & G. N. RY. CO.
• Court: Texas Court of Appeals

111 S.W. 1101

HUTCHINSON et al. v. INTERNATIONAL & G. N. RY. CO.

Court of Civil Appeals of Texas.

June 10, 1908.

Rehearing Denied June 29, 1908.

Error from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Mrs. B. P. M. Hutchinson and another against the International & Great Northern Railway Company. Judgment for defendant, and plaintiffs bring error. Affirmed.

Hutcheson, Campbell & Hutcheson, for plaintiffs in error. John M. King and Wilson & Dabney, for defendant in error.

NEILL, J.

Mrs. Hutchinson, joined by her husband, J. C. Hutchinson, filed this suit on May 10, 1907, against the defendant in error to recover damages alleged to have been caused certain of her separate real estate by reason of the maintenance and operation of its railroad along a certain street abutting a part and in the vicinity of some of the property. The petition alleges, in substance, that plaintiff is the owner of two certain pieces of property situated in the city of Houston, one known as the Palmer addition, and is divided into lots and blocks lying on the west side of Commerce street, the other being acreage lying on the east side of said street; that Commerce street was originally plaintiff's property, but was dedicated by her and her husband for street purposes by their deed executed in July, 1887; that all of her said property was adapted to and suitable to residence purposes, and in a neighborhood and location suitable thereto, and, were it not for operation of defendant's railroad along and down Commerce street in front of it, the property would have been very valuable, but on that account its value has been depreciated, and she has been damaged by reason thereof in the sum of $15,000; that in 1903 defendant, being the owner of a railroad track constructed in front of plaintiff's property on Commerce street, began to operate thereon an ordinary commercial railroad, carrying a large and heavy traffic by means of regular commercial engines and trains, constituting the track along said street a part of its railroad system which has a large volume of business and interstate connections; that said track is used to maintain and feed said system, being, on account of its location with reference to improvements, manufactures, compresses, etc., located and to be located at Harrisburg, and its location in reference to deep water on Buffalo Bayou, a valuable feeder and in a position to handle great quantities of freight; that said railroad track is so constructed that its rails extend above the street, and does not conform to its grade, thereby interfering with ingress and egress to and from plaintiff's property; that, on account of operation of the trains, hitching and tying horses in front of her property is impracticable and dangerous; that said operation does now, and will in the future, injure her property by shaking the ground, making the houses thereon unstable, impairing their foundations, etc., and make the property less valuable by reason of noise, smoke, and waste from the trains, creating disagreeable odors, befouling the premises and approach thereto, creating a risk to structures by fire, and generally on account of the disagreeable, annoying, and dangerous incidents attached to the operation of such a railroad, handling large volumes of business, plaintiff's property has been damaged in the said sum of $15,000; that, in addition to the general damage accruing from the maintenance and operation of said road, plaintiff has sustained special damage on account of the fact that the road as laid converges towards her property as it approaches Melby street, it being practically at the corner line, so that at no part of lot 1, block 1, is the road a sufficient distance therefrom to admit access thereto for vehicles, so that the value of the lot is practically destroyed, and the entire block injured by reason of the fact that sidewalks cannot be laid upon the property; and that the lot would have been worth $1,000 were it not for the damage thereby caused.

The plaintiff alleged the history of the railroad operations in front of her property substantially as follows: That the Houston Belt & Magnolia Park Railroad laid its track and commenced to run its trains by dummies or light engines on Commerce street in 1891, in front of plaintiff's property. That said road shortly thereafter was placed and remained in the hands of a receiver until purchased by one H. E. Fuller. That during such time the character of the business done and equipments used, and the way the track was laid, did not materially damage plaintiff. That the Houston, Oak Lawn & Magnolia Park Railroad Company purchased said road in 1901, and reconstructed the same, laying heavier rails and using regular engines and hauling a freight traffic, but the said road was an independent road, and no part of any of the great systems of railroads operated in the state; that in 1903 the International & Great Northern Railroad Company, defendant, by authority of the Legislature, acquired the property and franchises of the Oak Lawn & Magnolia Park Railroad Company, made it a part of its main line, and incorporated it into its system, assuming any liabilities chargeable to said company. That plaintiff is a married woman, and has been since 1886, and limitation has not run against her. That the operation of the railroad as it is at present constructed and maintained damages her property, and the defendant is liable to her for the difference between its present value and what its value would have been were the road not there; the damage so caused by said road being $15,000. That if plaintiff is mistaken in regard to her cause of action accruing in 1903, when the defendant commenced to operate said road, she then prays judgment for the difference between the value of her property at the date with the railroad as constructed there and with the same not there, with interest, etc., amounting to $15,000. That if neither of her views as to her damages is correct, and her cause of action should be held to have accrued when the road was operated and reconstructed by the Houston, Oak Lawn & Magnolia Park Railroad Company, then she prays judgment for the difference between the value of her land at such date, with the railroad as constructed there and if it were not there, with interest, etc., from said date, amounting to $15,000. That if she be mistaken in her three preceding views of her measure of damages, and it should be held that her cause of action accrued in 1891, when the Houston Belt & Magnolia Park Railroad Company laid its tracks, and commenced its operation, she asks judgment for the difference between the value of her premises with the railroad there as constructed and were it not there, with interest, etc., from that date, amounting to $15,000. And finally, premises considered, she prays judgment for such damages as will reasonably compensate her for her injuries suffered, as under the law and facts she may be entitled to.

The defendant answered by general and special exceptions to plaintiff's petition, a general denial, and by pleading specially the facts hereinafter stated in our conclusions, and that after the Houston Belt & Magnolia Park Railroad Company, with all its property and franchises, had been sold under an order of court by the receiver to pay all of its indebtedness as will appear from our conclusions of facts, the defendant under authority of an act of the Legislature purchased from the Houston, Oak Lawn & Magnolia Park Railway Company, who held and owned the property under mesne conveyances from the receiver, said road, together with all its property and franchises, and afterwards operated, and now operates, said road under and by virtue of the rights and franchises acquired by virtue of such purchase; that the Houston Belt & Magnona Park Railroad Company constructed its track along and upon Commerce street in front of plaintiff's property where the track is now located from its intersection on San Jacinto or Fannin street to the eastern limits of the city of Houston, from which time until now said road has been operated along said street in front of plaintiff's property. Wherefore, if her property was ever damaged, such damages occurred more than four years before the institution of this suit, etc. The case was tried before a jury, who, under a peremptory instruction from the court, returned a verdict for the defendant upon which the judgment appealed from was entered.

Conclusions of Fact.

On June 24, 1889, the city of Houston by ordinance of that date granted to the Houston Belt & Magnolia Park Railway Company the right of way over certain streets of the city, and thereby conceded and granted said railway company the right to construct and operate a railroad track from the eastern line of the corporate limits of the city of Houston to Commerce street, and along the same to Caroline street; thence, on Caroline street, to its intersection with Franklin street; thence, on Franklin street, to Preston street, also from Caroline street, along Commerce street, to its intersection with Washington street; thence, along Washington street, along Sixth street or Fourth street, so as to form a connection with the Houston & Texas Central Railway Company, with the right to construct a bridge across Buffalo Bayou at the intersection of Commerce and Washington streets, with the proviso that the city of Houston should have the right to participate in the construction and ownership of said bridge on such terms as might thereafter be agreed upon between the city and said company. The ordinance provided that the company might construct its railway so as to be operated by electricity or such other power as would not...