Knowles v. Northern Texas Traction Co.

• Decision Date: 10 June 1909
• Citation: 121 S.W. 232
• Parties: KNOWLES et al. v. NORTHERN TEXAS TRACTION CO.
• Court: Texas Court of Appeals

121 S.W. 232

KNOWLES et al. v. NORTHERN TEXAS TRACTION CO.

Court of Civil Appeals of Texas.

June 10, 1909.

On Rehearing, July 3, 1909.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by C. O. Knowles against the Northern Texas Traction Company, in which R. S. Waldron and others intervened. From a judgment for defendant, plaintiff and interveners appeal. Affirmed.

October 31, 1889, the Midway Company was incorporated under the laws of this state for the purpose of "erecting buildings and the accumulation and loan of funds for the purchase of real property in cities, towns, and villages." It was the owner of a tract of land containing over 200 acres and lying partly within and partly without the corporate limits of the city of Oak Cliff, which in 1889 it subdivided into lots, blocks, streets, and alleys as an addition to said city of Oak Cliff. The Fort Worth Street Railway Company was incorporated June 8, 1874, for the purpose of "erecting, building, constructing, operating, and maintaining a street railway on any or all of the principal streets of the city of Fort Worth, for the transportation of freight and passengers." February 11, 1895, the charter of said Fort Worth Street Railway Company was so amended as to define its purpose to be "the construction, maintenance, acquisition, and operation of lines of street railway for the purpose of transportation of freight and passengers for profit on any or all of the streets and within the corporate limits of the capital city of Fort Worth, Texas, and also on any and all of the streets of any or all additions of said city of Fort Worth and lying outside of the corporate limits of said city whether the same have been already established or may hereafter be established. And also on any or all of the roads of Tarrant county, Texas, leading from said corporate limits to said additions, and upon any private property over which said company may obtain the right of way in, near or adjacent to the said city of Fort Worth, Tarrant county, Texas. And for the construction, acquiring, maintaining and operating any suburban or belt lines of railway within or near the city of Fort Worth, Tarrant county, Texas." March 4, 1901, said street railway company by a further amendment of its charter changed its name to the "Northern Texas Traction Company." By act of the Legislature approved April 5, 1901, it was authorized to "construct, acquire, maintain and operate an interurban electric road from the city of Fort Worth through the counties of Tarrant and Dallas to and into the city of Dallas, in said Dallas county, Texas, by the extension of the lines now owned by it from Fort Worth, in Tarrant county, Texas, through the said counties of Tarrant and Dallas to and into the city of Dallas," and was further authorized in the construction of such an interurban electric road to exercise such rights of eminent domain as were conferred upon railroads by chapter 8, tit. 94, Rev. St. 1895. The traction company commenced, and in 1902 completed, the construction from Fort Worth to Oak Cliff, and from Oak Cliff, over the line of road belonging to the Oak Cliff & Dallas City Street Railway Company, whose rights it had acquired, to Dallas of its line of electric road. In the construction of its line of road, through a portion of the city of Oak Cliff it acquired by a conveyance from the Midway Company a right of way over said Midway Company's addition hereinbefore referred to, said right of way being known and identified by witnesses as the "Ninth Street right of way." This right of way extended from a point in Oak Cliff due west to the west boundary line of the addition. At a point three and one-half blocks, as laid off in the addition, east of the west boundary line of the addition it crossed Jefferson street, which curved south and east to a point where it intersected Tyler street in the city of Oak Cliff.

In the construction of its road the traction company, instead of continuing east on the right of way conveyed to it by the Midway Company, when it reached a point just west of Jefferson street constructed its road in an easterly direction, then along Jefferson street in a southerly direction and then eastwardly, making a double curve, referred to by witnesses as the "S" route. This part of the work of constructing the road seems to have been completed about March, 1902. Being dissatisfied with the way the road had been constructed, on account of the curve referred to, the traction company determined to change and straighten same by shifting its track from the Ninth Street and "S" routes south, so that its line of road would run on a straight line across said addition northwest from a point on Jefferson street about three blocks south of Ninth street. At this time while the land forming the addition had been subdivided into blocks, lots, streets and alleys, as aforesaid, only one or two, if any, of the lots had been sold, and the land was being used for and was treated by its owners as pasture land. In May, 1902, one Coffinberry, representing the traction company, went to Topeka, Kan., where Sweet, the president of the Midway Company, and Mulvane, its treasurer, resided, for the purpose of procuring from said Midway Company a right of way through said addition at the point to which the traction company wished to shift its track. He there saw and conferred with Sweet and with Mulvane, and as a result of such conferences by letter from Topeka instructed the manager of the traction company at Dallas to make the change as desired in the route of its road through the addition. The change was at once accordingly made. At that time one Betterton, a director of the Midway Company, and one Barry, another director, resided in Dallas. Barry was also the secretary of the company, and Betterton was its local agent for the purpose of looking after the property constituting the company's addition. It is reasonably clear from the record that both Barry and Betterton, if they did not know it at the time it was being made, shortly thereafterwards ascertained that the change had been made in the route of the traction company's road through the addition. Neither of them objected to or in any manner protested against the change as made. After the change was made, an extended correspondence between Sweet as president of the Midway Company, and Coffinberry and one Bishop, representing the traction company, was carried on, in an effort on the part of the traction company to obtain from the Midway Company a conveyance of the land in the addition appropriated by the former for its road, when the track thereof was shifted. The contents of this correspondence, so far as we think it necessary to do so, will be given in other parts of this opinion.

By a deed dated April 12, 1904, the Midway Company conveyed the land constituting the addition to appellant Knowles, excepting therefrom certain specified lots and blocks, described as "being represented upon a plat or part of said land made by this company some 14 years ago, which plat has since been abandoned by this company, and said lands held and used as acreage property, and not as lots and blocks." The suit was brought by Knowles against the traction company to try the title to and for possession of parts of the land appropriated by the traction company when it shifted its track from the Ninth street and "S" routes. The petition was in the ordinary form, except that in it by separate counts appellant averred title in himself under the 3, 5, and 10 year statute of limitations. Appellants R. S. Waldron, J. P. Blake, T. S. Miller, Jr., and L. A. Stemmons, who had acquired an interest in the property constituting the addition, under a contract with Knowles, intervened in the suit and adopted as their own the pleadings of appellant Knowles. The traction company answered by exceptions, a plea of not guilty, a plea of the 2-year statute of limitations as to damages claimed by appellants, and specially that it had entered upon and appropriated to use as a right of way for its road the land sued for by and with the consent of the Midway Company, its then owner, and relying upon such consent had expended in the shifting, etc., of its said road sums of money aggregating over $7,000, and as further ground of estoppel set up the reconveyance by it to the Midway Company of the Ninth Street right of way in consideration of the Midway Company's promise to convey to it the new way, which said reconveyance, it was alleged, the Midway Company had accepted, and afterwards had appropriated and continued to appropriate to its use the land thereby reconveyed to it. Appellants in reply plead at length matters which we think it unnecessary to state. The trial was before a jury. The only question submitted to them by the court was the one covered by the following instruction: "The question for you to decide and determine in this suit is: Did the Midway Company give its consent for the defendant Traction Company to shift and place its right of way where it now is— the lands thereon being the subject-matter of this suit? You are therefore instructed that if you find and believe from the evidence of this case that the Midway Company did not give its consent to the defendant company to shift its track and place it where it now is, you will find for the plaintiff. If, however, you find and believe from the evidence that the Midway Company did give its consent to the defendant company to shift its track and place it where it now is, you will find for the defendant company."

The verdict of the jury was in favor of appellee. A judgment was accordingly rendered that appellants take nothing by their suit.

T. B. Love, Lewis & Phillips, and R. C. Porter, for appellants. Baker, Botts, Parker & Garwood, Capps, Cantey, Hanger & Short, Finley, Knight & Harris, Walter H. Walne, and J. E. Gilbert, for appellee.

WILLSON, C. J. (after stating the facts as above).

In a carefully...