I. & G. N. R'Y Co. v. Benitos

• Decision Date: 27 April 1883
• Docket Number: Case No. 4796.
• Citation: 59 Tex. 326
• Court: Texas Supreme Court
• Parties: THE I. & G. N. R'Y CO. v. JUANA & MIGUEL BENITOS.

59 Tex. 326

THE I. & G. N. R'Y CO.

v.JUANA & MIGUEL BENITOS.

Case No. 4796.

Supreme Court of Texas.

Apr. 27, 1883.

APPEAL from Bexar. Tried below before the Hon. George H. Noonan.

In this case there was no claim for other than actual damages. The evidence of injury to crops consisted of estimates of their probable value at maturity, they having been destroyed while growing.

King & Mason, for appellant, cited R. S., arts. 4182-4188, 4167.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by the appellees to recover damages for an alleged trespass upon and occupation by the railroad company, for its roadway, of land which was alleged to be the property of Mrs. Benitos. The petition alleged that fencing was torn down and destroyed on the line of the railway, and that by the failure of the railroad company to restore the fences the appellees were prevented from making a crop on the farm through which the railroad was constructed.

There was a prayer for $300 for the value of the land used by the railroad company, and for $250 for the destruction of crops, which it was alleged were planted and growing on the land, which were alleged to have been destroyed by stock in consequence of the failure of the company to rebuild the fences, which it was averred it had promised to rebuild before the crops were planted. There was also a prayer for general relief.

It is claimed that the district court had no jurisdiction of the cause, and that the sole remedy which the appellees had was by a proceeding under the statute to condemn the land to the use of the railroad. This position cannot be maintained.

It is held by the great weight of authority, that, when a statute provides a tribunal and mode of procedure by which property may be condemned to a public use, such tribunal has an exclusive jurisdiction, and that the person or corporation to whom the statute gives the right to institute a proceeding to condemn land cannot resort to any other.

In this state the right to institute a proceeding to condemn land for the roadway of a railroad is given to the company seeking it, and to no other person (R. S., 4182), and if a company fails to avail itself of this right, and without the consent of the owner enters upon his land, such owner is entitled to resort to any court having jurisdiction, by reason of the amount of damage claimed, for redress of the wrong. Atlantic & G. R. R. Co., 48 Ga., 423;Sherman v. The Milwaukee, L. S. & W. R. R. Co., 40 Wis., 652;Blesch v. The Chicago & N. W. R. Co., 43 Wis., 192;Kansas Pacific R. Co. v. Streeter, 8 Kans., 135;Stein v. Burden, 24 Ala., 146;Soulard v. The City of St. Louis, 36 Mo., 552.

In this case the plaintiffs have elected to receive compensation for the value of the land taken, and we see no reason why the district court has not jurisdiction under the averments in the petition, the defendant having failed to pursue the statutory method of condemnation, to award to the plaintiffs such compensation as they may be entitled to, and in the same proceeding to vest in the defendant the right of way.

In speaking upon this subject, Breese, J., delivering the opinion of the supreme court of Illinois, said: “They were required and were bound to take the initiative. No burden is thrown upon the owner of the land. Whilst mandamus is the proper remedy in many cases against such a corporation, this is not one of them. Here the corporation has, without authority of law, taken possession of appellant's land, and the question is, shall they be allowed to rob appellant at defiance and compel him to institute proceedings by which he is to be deprived of his land? Two remedies, it seems to us, were open to appellant-- this action of ejectment, or an action to recover the value of the land taken. Smith v. C., A. & St. L. R. R. Co., 67 Ill., 196.

In the case of Gilman v. The Sheboygan & Fond du Lac R. R. Co., 40 Wis., 660, Cole, J., said: “Doubtless an action of ejectment would lie against the defendant to recover the possession of the property. But the plaintiff has not seen fit to resort to that remedy, but seeks by an action in equity to compel the defendant either to abandon the possession and use of his land, or to pay him for it. His right to that equitable relief is founded upon the fact...