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

• Citation: 36 S.W. 497
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. DOSS et al.
• Decision Date: 16 May 1896
• Court: Court of Appeals of Texas

36 S.W. 497

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

Court of Civil Appeals of Texas.

May 16, 1896.

Appeal from district court, Clay county; George E. Miller, Judge.

Action by J. P. Doss and others against the Missouri, Kansas & Texas Railway Company of Texas for damages resulting from the removal of defendant's depot from the town of Doss. There was judgment for plaintiffs, and defendant appeals. Affirmed.

A. K. Swan, for appellant. J. A. Templeton, for appellees.

Conclusions of Fact.

STEPHENS, J.

Appellees J. P. and D. B. Doss recovered judgment against appellant railway company in the sum of $1,456.25, as damages resulting from the removal by appellant of its depot and stock pens from Doss, in Clay county, to Ringgold, in Montague county, a distance of about three miles. Both places were stations, successively, on the line of railway constructed in 1886 and 1887 between Gainesville and Henrietta by the Gainesville, Henrietta & Western Railway Company, since merged, as provided in a special act of the legislature, in appellant company, under terms and conditions which imposed upon the latter company the liabilities of the former. See Railway v. Lacy (recently decided in Third district) 35 S. W. 305. The location of the depot and stock pens at Doss, in 1887, created the town or village of that name, which the subsequent removal, in 1892 or 1893, to Ringgold destroyed. This location, as well as all others along the line, was made by Maj. Wathen, chief engineer for the company constructing the road, assisted by Volney Hall, the right of way agent, in pursuance of a contract to that effect with appellees, who owned a large body of land in that vicinity. This contract, which was verbal, required the depot and stock pens to be permanently located and maintained at Doss, in consideration of the gift by appellees to the railway company of 5 acres of land for the stock pens and 200 feet for depot purposes in addition to the right of way of 100 feet already granted, and also a half interest in the town site of 200 acres. Appellees executed deeds in compliance with their part of the undertaking. The deed conveying the additional right of way or depot grounds and the 5 acres for stock pens, executed March 24, 1887, recites the consideration thus: "In consideration of the supposed advantages and facilities which it is supposed our lands will derive from the construction and operation of the Gainesville, Henrietta & Western Railway through, over, and across them, and for the further consideration of ten dollars to us in hand paid." The contents of the other deed do not appear in the record, further than that "the evidence of title to the land was taken by the company in the name of the trustee for the benefit of the company." The verdict is sustained by the evidence in the following findings upon the controverted issues of fact: (1) The verbal contract for the permanent location of the station at Doss, with depot and stock pens, was made, as alleged by appellees, between them and Chief Engineer Wathen and Right of Way Agent Hall, acting in behalf of the Gainesville, Henrietta & Western Railway Company, and said location was so made in 1887, as said Hall expressed it, "to stay." (2) Wathen and Hall had authority to make such contract, and the railway company received and retains the consideration therefor. (3) Appellant company, which was equally bound to respect the contract, violated it, and removed the station, depot, and stock pens, and broke up the town of Doss, in 1892 or 1893. (4) The result was a depreciation in the price of appellees' lands adjacent to said station equal to the amount of the verdict.

Conclusions of Law.

1. The special exception to appellees' petition, urging that it did not give the name of the railway agent who made the contract with them, was properly ignored by the court, on the ground that it came too late. Not only had a term of the court passed since appellant had answered, but no action was invoked on the special demurrer until after both parties, upon the call of the jury docket, had announced ready for trial. The fact that the special exception may have been then for the first time introduced by amendment does not alter the case. Sayles' Civ. St. arts. 1269, 1289; Dist. Ct. Rules, 24, 25, 20 S. W. xiii. Besides, no harm could have resulted, as it appears from the answer that appellant...