Missouri, K. & T. Ry. Co. of Texas v. Fisher

• Decision Date: 14 May 1898
• Citation: Missouri, K. & T. Ry. Co. of Texas v. Fisher, 47 S.W. 284 (Tex. App. 1898)
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. FISHER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

47 S.W. 284

MISSOURI, K. & T. RY. CO. OF TEXAS v.FISHER et al.¹

Court of Civil Appeals of Texas.

May 14, 1898.

Error from district court, Dallas county; Edward Gray, Judge.

Action by A. L. Fisher, as next friend of Lula and Jerry Moore, minors, and another, against the Missouri, Kansas & Texas Railway Company of Texas.From a judgment in favor of plaintiffs, defendant brings error.Affirmed.

This suit was brought by A. L. Fisher, as next friend of the minors Lula Moore and Jerry Moore, and as husband of Lucy E. Fisher, joined by his wife, said Lucy E. Fisher, in form of trespass to try title and for damages to a strip of land 100 feet wide and 3,163 long, against the Missouri, Kansas & Texas Railway Company of Texas, said land constituting the right of way of said road over the J. W. Kenn survey, in Dallas county, Tex.The petition described the land specifically, and contained the usual averments for a recovery in an action of this form, and also prayed for damages in the sum of $2,000.The defendant pleaded general denial, not guilty, and that on August 4, 1886, the present wife of plaintiffA. L. Fisher(who was then a widow, by name Lucy E. Moore), for a valuable consideration, conveyed the right of way to the Dallas & Greenville Railway Company and its successors, and that the defendant did legally succeed to the rights of said Dallas & Greenville Railway Company.It was alleged that at the time of the conveyance Lucy E. Moore was the surviving wife of J. C. Moore, and that the property was their community property.There was a trial, which resulted in a judgment for the plaintiffsLula Moore and Jerry Moore for an undivided half interest in said land, and for the plaintiffs for damages in the sum of $365.A motion for new trial on the part of the defendant was overruled by the court.Defendant filed its petition for error, assignments of error, and has duly prosecuted its writ of error to this court.Additional facts for the understanding of the points discussed and decided will appear in the opinion.

Alexander, Clark & Hall, for plaintiff in error.Henry & Crawford, for defendants in error.

BOOKHOUT, J.(after stating the facts).

Plaintiff in error, under its first and second assignments, submits the following proposition: "Damages to the remainder of land, the result of inconvenience or increased difficulty of communication between parts of the farm severed by a railway, occasioned by an embankment, fencing, or other construction, when not the result of negligence in construction, are included in the assessment of damages in condemnation, or in the sale where the right of way is acquired by purchase."This proposition, we think, may be regarded as sound; but we do not think it can be invoked in this case.It is contended that the record shows a purchase of the right of way through the land described in the petition by the Dallas & Greenville Railway Company from the plaintiffMrs. Lucy E. Moore, previous to her marriage with defendant in error A. L. Fisher, and therefore there can be no recovery of damages by her.

The case is brought to this court upon an agreed statement, as provided by article 1414, Rev. St. 1895.The record fails to show that any such conveyance was introduced in evidence.It was shown that the 120 acres of land described in the petition was purchased by J. C. Moore on August 22, 1879: that J. C. Moore and defendant in error Mrs. Lucy E. Fisher were then...