J. S. Abercrombie Co. v. Hagen

• Decision Date: 08 February 1951
• Docket Number: No. 12257,12257
• Citation: 238 S.W.2d 239
• Parties: J. S. ABERCROMBLE CO. v. HAGEN ex ux.
• Court: Texas Court of Appeals

Page 239

238 S.W.2d 239

J. S. ABERCROMBLE CO. v. HAGEN ex ux.

No. 12257.

Court of Civil Appeals of Texas, Galveston.

Feb. 8, 1951.

Rehearing Denied March 1, 1951.

Turner, Rodgers, Winn, Scurlock & Terry, Frank J. Scurlock and James R. Wendover, all of Dallas, for appellant.

Robert F. Peden, Jr., of Bay City, for appellees.

GRAVES, Justice.

This appeal is from a judgment of the 130th District Court of Matagorda County, in favor of the Appellees and against the Appellant, entered upon a jury's verdict for $2100.00, in response to a single question by the Court, asking what sum would reasonably compensate the Appellees for permanent damage to-and like appropriation of-a surface strip, 1349 feet long by 26 feet wide, along the southeast line of their 11.3-acre tract of land, resulting from the appropriation thereof by the Appellant for that purpose and its maintenance thereon of 4 oil-pipelines.

A sketch of the scene, taken from the Appellant's brief in this Court, and not criticised by the Appellees, is attached hereto as an exhibit.

On the return of the verdict, the court ordered a remittitur of $1100.00, entering and allowing its judgment for $1,000.00 only, to stand.

In this Court, the Appellant, in its first point-of-error, urges that such claim for damages by the Appellees at the time of filing their suit therefor was squarely barred by the two-year statute-of-limitations, Article 5526, R.C.S.; this for the reason that the right-of-way for the 4 pipelines complained about was shown, by the undisputed evidence, to have been appropriated in September of 1947, whereas, the Appellees did not file their suit herein against this Appellant until December 5, 1949, more than two years thereafter.

This Court has carefully reviewed the record, inclusive, especially, of the Statement-of-facts relating to such claim for the intervention of this two-year statute-of-limitations, and is constrained to hold that it must be sustained.

The evidence affecting this issue seems to be reasonably free from indefiniteness, or dispute, and may it is thought, be briefly summarized in this way:

The Appellees first filed a similar suit in an original petition, on September 8, 1949, against 'Abercrombie Company, a private corporation, duly incorporated under the by virtue of the laws of Texas, and doing business in the County of Matagorda and State of Texas, with its principal office and place of business in the City of Houston, Harris County, Texas, with its authorized agent residing in said County and State, hereinafter styled Defendant.'

The undisputed evidence showed there was no such corporation, and thereafter on December 5, 1949, the Appellees, by what they termed their 'First Amended Original Petition', filed the suit here at Bar for such damages against 'J. S. Abercrombie Company, a private corporation, duly incorporated under and by virtue of the laws of Texas, and doing business in the County of Matagorda, and the State of Texas, with its principal office and place of business in the City of Houston, Harris County, Texas, with its authorized agent residing in said County and State, hereinafter styled Defendant,' and so forth.

No answer nor cognizance whatever by this Appellant, 'J. S. Abercrombie Company', to such first suit so filed by the Appellees was ever made, or taken, by this Appellant; whereas, in response to the second one, it filed its original answer thereto on the date of December 19, 1949, and has persistently resisted ever since the damageclaim herein so recovered upon by the Appellees, as indicated supra.

The Appellant, on the one hand, asserts that the undisputed evidence discloses that the right-of-way for the 4 pipelines was appropriated by it in September, 1947;

Whereas, the Appellees, directly opposing, to quote their own language from their brief, say this:

'Defendant company desired to gather gas from several producing wells on nearby leases (1/10 to 1/2 mile away) and some time late in December, 1947, or early in 1948, laid four pipelines across one side of Plaintiffs' tiffs' land. These pipelines were laid above the surface of the Plaintiffs' land, without their consent or permission, and they still remain above the surface of their land, cutting off ingress and egress on one side.

'Defendants have continuously used the strip of land which they appropriated and which is approximately 35 feet wide and 1349 feet long.'

This appoisition of the view-points of the opposing litigants expresses, in this Court's opinion, the justiciable question involved as concerns the applicability of the two-year statute-of-limitation, so invoked by the Appellant.

Further, what slight difference there may be, if any of a probative character, between the opposing parties as to the time when the Appellant committed its alleged entries upon and appropriation of the strips of the Appellees' land for the purpose of constructing and maintaining its 4 oil-pipelines thereon, results from a similar difference in ways of thinking.

In other words, as indicated, the Appellant marshals the evidence, and all of it this Court thinks, bearing upon the inquiry as to when it first entered upon the Appellees' premises and appropriated the rights-of-way thereon; showing, even by the testimony of the Appellees themselves, that that was done not later than during...