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

• Decision Date: 02 December 1899
• Citation: 55 S.W. 393
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. STARR et ux.
• Court: Texas Court of Appeals

55 S.W. 393

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

Court of Civil Appeals of Texas.

December 2, 1899.

Appeal from district court, Wood county; J. G. Russell, Judge.

Action by James F. Starr and Clara C. Starr, his wife, against the Missouri, Kansas & Texas Railway Company of Texas and J. W. Carey, to recover the value of timber cut from plaintiffs' lands without their authority or consent. There was a judgment for plaintiffs, and defendants appeal. Affirmed.

T. S. Miller, H. M. Cate, and Head, Dillard & Muse, for appellants. Ben. S. Pope and F. H. Prendergast, for appellees.

FINLEY, C. J.

This case was tried before the court without a jury, upon an agreed state of facts, as follows:

"The parties plaintiff and defendant in the above case agree to withdraw the case from the jury docket, and submit it to the judge for his decision, upon the following agreed statement of facts: This is a suit by James F. Starr, joined by his wife, Clara C. Starr, as plaintiffs, against the Missouri, Kansas & Texas Railway Company of Texas and J. W. Carey, as defendants, suit being instituted on October 26, 1897. The suit is for the value of ties cut off of the Andres Gonzales League, in Wood county, Tex. A portion of the land from which the ties were cut belonged to Mrs. Clara C. Starr as her separate property, and a portion of said land belonged to James F. Starr as his separate property, as heretofore shown. It was agreed that there were 2,400 ties cut from and manufactured into ties and afterwards removed from said land, and that said ties were worth 5 cents per tie standing in the woods, and that 90 per cent. of said ties were worth 31 cents at Alba, Tex., on the line of the defendant railway, and that 10 per cent. of said ties were worth 13 cents per tie at Alba; all of said ties being delivered to the defendants at Alba. The following blocks of land, containing about 60 acres each, belonged to Clara C. Starr, as her separate property: 59, 61, 66, 80, 96, 76, 68, and 81; and the following blocks of land belonged to James F. Starr, as his separate property: 40, 41, 47, 54, 73, 58, 55. That 1,400 of said ties were cut within two years of the filing of this suit, and that 1,000 of said ties were cut more than two years before the filing of the suit, but said 1,000 ties were cut from land belonging to Clara C. Starr in her own separate right, who is now, and has been for the last twenty years, a married woman, the wife of James F. Starr. All of said ties were cut by persons unknown to the parties to this suit, who had no right to cut said ties from said land. That the defendant J. W. Carey purchased 1,400 of said ties without any knowledge or information that they had been cut from plaintiffs' land unlawfully, and without plaintiffs' authority, and that he paid full value therefor, and delivered the same to his co-defendant railway. That the Missouri, Kansas & Texas Railway Company of Texas received 1,000 of said ties from R. Gilmour & Bro., who were contractors, two years prior to the institution of this suit, and that said Gilmour & Bro. and said railway had no knowledge or information that they were taken from plaintiffs' land without their consent, and that they paid full value for said ties. In case any judgment is rendered for the 1,400 ties against both Carey and the defendant railway, then the latter shall have judgment over against Carey for such amount. In case a judgment is rendered against Carey and the defendant railway for the 1,400 ties, and a judgment is rendered against the railway for the 1,000 ties, then the costs in this case shall be apportioned between Carey and the said railway in proportion to the amount so rendered against each of said defendants. One thousand six hundred of said ties cut from said land were cut from the blocks owned by Clara C. Starr, and 800 from those blocks owned by James F. Starr. All of said ties were cut without the knowledge or consent of James F. Starr or his wife, Clara C. Starr. It is further agreed that J. W. Carey was general tie contractor in Texas for the M., K. & T. Ry. Co., and received and paid for monthly, from January 1, 1895, to date of this suit, all ties delivered on the line of said railway in Texas, and that at the Alba yards and yards adjoining thereto, where all the ties in question were delivered, Carey received these and other ties, mixed together, —ties far in excess of the ties in controversy.

"Questions of law to be determined under the foregoing statement of facts: (1) Can the plaintiffs maintain this action in the manner in which it is brought, for the reason that a portion of the land is the separate property of James F. Starr, and a portion of the land is the separate property of Clara C. Starr, and such lands are in separate lots, as shown in said statement of facts? Now, the question is, can the suit be maintained on account of misjoinder of action? (2) Does limitation apply to Mrs. Clara C. Starr? (3) If plaintiffs can recover, what is the measure of damages, the value of the ties in the trees, or the value of the timber after the same had been manufactured into ties, and hauled to the railroad at Alba? Plaintiffs contend that the measure of damages is the value of the ties after they were cut and hauled to Alba. Defendants contend that the measure of damages is the value of the ties as they were in the trees after being cut and felled and hauled, as agreed, at five cents per tie."

The court rendered judgment in favor of the plaintiffs against both defendants for $408.80, and for this sum and four-sevenths of the costs the railway company was given judgment against its co-defendant, Carey. Of the $408.80...