Kansas City, M. & O. Ry. Co. of Texas v. Weaver

• Decision Date: 18 January 1917
• Docket Number: (No. 643.)
• Citation: 191 S.W. 591
• Parties: KANSAS CITY, M. & O. RY. CO. OF TEXAS v. WEAVER.
• Court: Texas Court of Appeals

191 S.W. 591

KANSAS CITY, M. & O. RY. CO. OF TEXAS v. WEAVER.

(No. 643.)

Court of Civil Appeals of Texas. El Paso.

January 18, 1917.

Rehearing Denied February 8, 1917.

Appeal from District Court, Brewster County; Joseph Jones, Judge.

Action by J. W. Weaver, originally commenced against S. B. Hovey and another as receivers, in which the Kansas City, Mexico & Orient Railway Company of Texas was made a defendant after the property was returned to it by the receivers. Judgment for the plaintiff, and defendant railway company appeals. Reversed and remanded for new trial.

H. S. Garrett, of San Angelo, Williams & Jackson, of Ft. Stockton, and W. Van Sickle, of Alpine, for appellant. Martin & Martin and Ben G. Smith, all of Ft. Stockton, for appellee.

HARPER, C. J.

This is an appeal from a judgment for $3,000 in favor of appellee and against the Kansas City, Mexico & Orient Railway Company of Texas for cutting down a street upon which plaintiff was an abutting property owner. The suit was originally filed against the receivers of the railway company, appointed by the United States District Court. They were discharged, whereupon, by amended pleading, the company was made a party defendant, and for cause of action alleged: That S. B. Hovey and M. L. Mertz were the duly appointed and qualified receivers of the said railway company under an order of the United States District Court for the Northern District of Texas. That, as receivers, they extended the line of railway from Girvin to Alpine and across Avenue D, a public street, and in close proximity to and along the full length of plaintiff's property, and raised its grade so as to constitute a high embankment on which its tracks were located. That, after the receivers constructed the embankment and track, they excavated a large cut or ditch along said street which extended on each side of said track about 300 feet long and in front of his property. That immediately in front of his premises it has a depth of 6 feet with perpendicular walls which cuts off the approach of his premises, and that by reason thereof he is unable to use his sidewalk for ingress and egress. That his property (described) is used as a residence. That said ditch renders his property unsightly, etc., with other allegations descriptive of the cause of injury to his property. That, by order of the court, the properties of the railway company, including this portion of its road, was turned back to the company, and the receivers discharged. The order, in part, reads:

"Directing the delivery of said property to the railway company * * * expressly charged with and subject to: (a) All court costs, etc.; (b) all of the liabilities which have heretofore been adjudicated * * * and which may hereafter be finally adjudicated and determined to be just, true, and correct demands against said Hovey and Mertz as receivers, arising out of the operation of the lines or property of the defendants by such receivers; (c) all of the indebtedness and liabilities owned by and due from the said * * * company which have been finally established and adjudged or which may hereafter be finally adjudicated by this court or by any other court of competent jurisdiction, and which may be found to be just, legal liabilities against the said railway company."

That the earnings, by reason of the operation of the railroad by the receivers, was expended in the construction of said road and its improvements, and that the revenue so expended were in betterment of the road and greatly exceeded all claims heretofore established and now sought to be established against the company or its receivers.

Defendant answered by special exceptions: (1) That the claim is barred by the statute of limitations of two years; (2) that it does not show that the receivers had any authority to grade the street. General denial. Specially pleaded the statute of two years' limitation. That, if the excavation was done by the receivers or any person acting under them, it was without authority. That the excavation is no part of the right of way of defendant railway company, and that, if it was done, it was done under an agreement between the county judge and commissioners' court of the county and one Parker, and said Parker had no authority from the receivers or the defendant to do it. That therefore the defendant is not liable.

Many of the nineteen assignments raise the same questions, so we take them up for discussion in the order which we think most comprehensive.

The eighth charges error in the court not sustaining exception to the petition: (a) Because it did not charge that the excavation in the street was done by the receivers as such; (b) because it fails to show that it was done by the receivers, as such, in the line of their duties as receivers of the railway property, nor does it allege that the court ordered it done.

Receivers can bind the property in their hands or its proceeds only by such acts as the court may previously authorize or subsequently approve. The power of the receivers to incur some liabilities chargeable against the funds in their hands may be necessarily implied in their appointment from the nature of the duties to be performed, and this is especially true of receivers of railways, whose duty it is made to operate the road placed in their charge; but in order to charge the railway company, after it has received back its property, with liabilities incurred by the receiver, the party seeking recovery must plead and prove that the claim he asserts comes with the above rule, because otherwise the receiver may be personally liable and not the company. I. & G. N. Ry. Co. v. Herndon, 11 Tex. Civ. App. 465, 33 S. W. 377, and authorities there cited. Applying the rules announced above, it must be held that the petition is insufficient. T. & P. Ry. Co. v. Adams, 78 Tex. 372, 14 S. W. 666, 22 Am. St. Rep. 56.

Nor is the defect cured by any allegation in defendant's answer as suggested by appellee. Plaintiff's petition must contain such affirmative allegations as will put defendant upon notice of the facts relied upon as a basis of the cause of action, and the negative allegation in the answer, that the acts of the receivers in constructing the excavation was without any authority from the court appointing them, did not cure the defect.

Appellee further suggests that, the appellant having itself produced the order of the court authorizing the receivers to extend the line from Girvin to Alpine and impliedly to do this excavation, it cannot now complain that the petition was insufficient in failing to allege such order and authority. There is no question of the authority to extend the line, but the question here is: Did the court directly or impliedly authorize the construction of the ditch, or afterwards approve it? Or, are the allegations in plaintiff's petition sufficient to charge that this street excavation was a proper or necessary work in the construction of the additional mileage?

The...