Lone Star Gas Co. v. Meyer

• Decision Date: 05 March 1927
• Docket Number: (No. 11722.)
• Citation: 296 S.W. 1110
• Parties: LONE STAR GAS CO. v. MEYER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

296 S.W. 1110

LONE STAR GAS CO. v. MEYER et al.^*

(No. 11722.)

Court of Civil Appeals of Texas. Fort Worth.

March 5, 1927.

Rehearing denied April 9, 1927.

Writ of Error Dismissed for Want of Jurisdiction June 4, 1927.

Appeal from District Court, Hood County; J. B. Keith, Judge.

Action by V. F. Meyer and others against the Lone Star Gas Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Ritchie & Ranspot, of Mineral Wells, and Karl F. Griffith, of Dallas, for appellant.

Estes & Estes, of Granbury, for appellees.

BUCK, J.

Mrs. Ethel Meyer and Lillie Belle Meyer, joined by their respective husbands, filed suit against the Lone Star Gas Company, a corporation, hereinafter called the company, for damages. They alleged that they were the owners and claimed the fee-simple title to an undivided one-half interest in a described tract of land containing 80 acres more or less, situated in Hood county; that plaintiffs were entitled to the possession of their said interest in said tract of land, and were entitled thereto on January 1, 1920; that on the ____ day of ____, 1919, the said defendant company entered upon plaintiffs' premises, and dug a ditch, some three feet wide, for the purpose of laying a pipe line across the land in which plaintiffs owned a one-half interest; that such act was without the consent of plaintiffs or of any one legally authorized to act for them, and that said entry was unlawful and against the rights of plaintiffs; that on January 1, 1926, the said defendant company cut another ditch across plaintiffs' land about six feet deep and about three feet wide, said ditch being parallel with, and near to, the original ditch heretofore mentioned, and in said ditch placed their pipe lines for the purpose of conveying gas; that, since the laying of said original line of pipe, the defendant has maintained the same, and used plaintiffs' land to their damage; that in making and cutting the said ditch or ditches the defendant has torn and destroyed the grass on said lands, and otherwise tramped upon and over plaintiffs' lands, thereby causing serious damages to the same; that on various occasions the original gas line has blown out, and on more than one occasion said pipe line blew out on plaintiffs' field, thereby causing serious damages to plaintiffs' land. Plaintiffs' petition further alleges that they feared, and had reason to fear, that the pipe line would blow out again, and cause damage to plaintiffs; that the defendants had constructed telephone poles over and across said lands, and had strung telephone wires thereon, and had employed the services of parties commonly called "pipe line walkers," who, in the discharge of their duties, walk said line daily, all of which was alleged to be a menace and a nuisance to plaintiffs, and an injury to their land; that in laying and constructing the said line the defendant cut and destroyed the fences on plaintiffs' land, to plaintiffs' damage.

The cause was tried before a jury on special issues, and the jury found that: (1) Plaintiffs' land had been damaged by the construction of the pipe line about the first of January, 1926; (2) that the injury to the land was permanent; (3) that plaintiffs were entitled to $350 damages. From this judgment the defendant company has appealed.

Opinion.

The evidence shows that the 80-acre tract of land, in which plaintiffs allege a one-half interest, belonged to their father and mother as community property. Their mother died, and their father subsequently married, and is now living on the land. Appellant urges that under section 52, art. 16, of our state Constitution, it is provided that the homestead shall descend and vest as other property, but that it shall not be partitioned among the heirs during the lifetime of the surviving husband or wife or so long as the survivor may elect to use and occupy it; that the heirs are but remaindermen, and are not entitled to possession of their interest in the homestead until it ceases to be the homestead of the surviving husband or wife; that when it develops, on the trial of an action of trespass to try title and for damages, that the property in question was formerly the homestead of plaintiffs' father and mother, that their mother is dead, that their father is living on the land at the time of the trial, with his second wife, claiming it as a homestead, it is error for the court, on motion of the defendant, to refuse to dismiss the suit, plaintiffs having shown that they are not entitled to possession of the property, and the father not being a party to the action.

The interest of the deceased spouse in the community homestead vests in the children upon the death of their parent, subject to the use of the surviving spouse during his or her life, or so long as the survivor shall elect to use it. Clemons v. Clemons, 92 Tex. 66, 45 S. W. 996.

Upon the death of Mrs. Barton, the two surviving daughters and their fathe...