Kirby v. Panhandle & G. Ry. Co.

• Decision Date: 29 April 1905
• Citation: 88 S.W. 281
• Parties: KIRBY v. PANHANDLE & G. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 281

88 S.W. 281

KIRBY v. PANHANDLE & G. RY. CO.^*

Court of Civil Appeals of Texas.

April 29, 1905.

Appeal from Hardeman County Court; W. J. Jones, Judge.

Proceeding by the Panhandle & Gulf Railway Company to condemn certain land, belonging to R. H. Kirby, for a right of way. From a judgment assessing damages, Kirby appeals. Reversed.

Osbourne, Marshall & Hall and Bowyer & Tillett, for appellant. H. C. Hord, Fires & Decker, and Duncan G. Smith, for appellee.

SPEER, J.

This is a condemnation proceeding instituted by appellee against appellant, and the appeal is from a judgment in the county court awarding appellant $1,203.51.

After instructing the jury by general and special charges, the court submitted to them for determination the following special issues: "(1) What was the market value of the 5.23 acres of land at or just before the appropriation of same for roadbed and right of way purposes on the 12th day of April, 1902? (2) What was the market value of the residue of defendant's body of land at or just before the condemnation and appropriation of said 5.23 acres by appellant? (3) What was the market value of the residue of defendant's body of land just after the appropriation by plaintiff of said 5.23 acres?" The jury answered the first two questions, "$12 per acre," and the third, "$10.65 per acre," and upon this verdict the court proceeded to render judgment for the amount of $1,203.51, as aforesaid.

It is insisted that the answers of the jury were not responsive to the special issues submitted, and were incomplete, and therefore the court erred in receiving and entering judgment on them. It is clear that within itself the verdict does not authorize judgment for any amount whatever, and that the court looked beyond it in entering the judgment he did. Du Bose v. Battle (Tex. Civ. App.) 34 S. W. 148; Galveston, H. & S. A. Ry. Co. v. Botts (Tex. Civ. App.) 55 S. W. 514; Oriental Investment Company v. Barclay (Tex. Civ. App.) 64 S. W. 80. It is not a case for the application of the rule that a cause will not be reversed for the failure of the court to submit an issue where there has been no request for such submission, because the court did submit these special issues in a manner satisfactory alike to both parties, but the difficulty is that the answers are not responsive and practically no answers at all. We apprehend the court arrived at the amount of the judgment upon a basis of 850 acres, the amount of land alleged by the appellee to be in appellant's farm. But in this statutory proceeding there is nothing to require such an allegation in the petition, and we do not think the owner can be thus limited in his recovery of damages to his entire tract by reason of the condemnation of a right of way through it. The demand of the statute with reference to the description required in the statement to be filed with the county judge is that it shall "state in writing the real estate and property sought to be condemned, the object for which the same is sought to be condemned, the name of the owner thereof and his residence, if known." Sayles' Ann. Civ. St. 1897, art. 4447. Upon the filing of this statement the county judge is required to appoint three disinterested freeholders as commissioners to assess the damages, who, after having issued a notice in writing to each of the parties of the time and place selected for the hearing, are authorized to proceed to fully hear said parties, and to assess such damages as will be sustained by the owner. And while it is provided that, "If either party be dissatisfied with the decision of such commissioners he may within ten days after the same has been filed with the county judge file his opposition thereto in writing setting forth the particular cause or causes of his objection, and thereupon the adverse party shall be cited, and said cause shall be tried and determined as in other civil causes in said court," still we find nothing in the statute that would require either party in his pleadings to define the limits or extent of the holding of the owner whose property is sought to be condemned. This we take to be a matter wholly of proof. For it is contemplated by the very letter and spirit of the statute that the owner is entitled to recover, not only the market value of the land actually taken, but, in addition thereto, the damages sustained as to the remaining portion. In this case there is no admission...