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

• Citation: 81 S.W. 781
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. ANDERSON.
• Decision Date: 18 May 1904
• Court: Texas Court of Appeals

81 S.W. 781

MISSOURI, K. & T. RY. CO. OF TEXAS v. ANDERSON.

Court of Civil Appeals of Texas.

May 18, 1904.

Appeal from District Court, Hunt County; H. C. Connor, Judge.

Action by Nathan Anderson against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

T. S. Miller and Perkins, Craddock & Wall, for appellant. R. L. Porter and Looney & Clark, for appellee.

FISHER, C. J.

The appellee, the plaintiff below, in his suit against the appellant, states in his petition that he is the owner of lots 6 and 7, in block 7, of the Wright Addition to the city of Greenville. The lots are described as beginning at a stake, the intersection of the north boundary line of the right of way of the old East Line & Red River Railroad, subsequently conveyed to the Sherman, Shreveport & Southern Railway Company, and now, and at the time of filing the suit, operated and controlled as a part of the appellant's line of road, which said north boundary line intersects the west boundary line of Texas street, thence north 125 feet, thence west 331 2/3 feet, thence south to the line of said right of way, thence east to the place of beginning. The above-described land was, at the time the suit was filed, and before, occupied by the plaintiff and his wife and children as their homestead; and that the lots in question are in the residence portion of the city of Greenville, and are valuable for residence purposes only. That at the time of and before the conduct of the defendant, as complained of, the property was worth $1,750, and is located just north of and adjoining what was once defendant's main line of railroad. That, before the changes made in the operation of the road and the use of appellant's right of way, the line of road was composed of only one track, running immediately south of the plaintiff's land, and was used only for the passage of freight and passenger trains in the usual and ordinary way, but was not used as any part of the yards of defendant's road, or for the purpose of switching or holding or making up trains thereon. That some time during the summer of 1901 the defendant began the laying out, construction, and building of yards at and near the city of Greenville, on an extensive scale, laying out and building same beyond the plaintiff's land. That it changed the natural lay of the land adjacent to plaintiff's property, and changed the former grade of its roadbed and track by and beyond the plaintiff's land, by piling up dirt, shoveling and scraping, and excavating and taking away dirt from the south side of the plaintiff's land, and made its roadbed at that point much deeper and wider, and it laid down another main line and several switches and side tracks south of and near plaintiff's property, where no switches and side tracks had before existed. That, just before the changes in defendant's roadbed and track before mentioned, the defendant built a large coal chute just east of plaintiff's land, and also erected a large overground water tank, at which coal chute and water tank the defendant's engines and trains were filled with water and coal. That the main yards built by defendant are located southwest of the plaintiff's property, and that in connection with said yards the defendant built, just south of and near plaintiff's land, switch stands and blocks, sidings and switches, used as approaches to and from the main line, leading off to the switchyards on one side and the coal chute and water tank on the other; and that at these points are located quite a number of switch stands and blocks, just south of and near plaintiff's property. After the completion of these improvements, the defendant has had the same in full operation, and keeps and maintains about three regular switch crews in and about its yards, sidings, coal chutes, water tanks, and depots, each crew having engines and tenders; and said crews, with the engines and tenders, are continually at work, day and night, and have been since the yards were built, switching and making up trains and going to and from the yards, coal chutes, and water tanks—all of this in addition to the regular trains that pass over the main lines of said road. That the work of said crews in the operation of said trains, engines, etc., makes and causes great and unusual noises, the engines emitting great quantities of smoke, dust, cinders, and soot, and offensive odors, causing plaintiff's property and dwelling to shake and vibrate, all of which things envelop and spread over and affect the lots and premises of plaintiff, and by reason of such use and things as aforesaid, the property has been rendered uninhabitable and almost useless as a place of residence; and that said dust, cinders, soot, gas, noxious vapors, vibrations, and noises permeate plaintiff's house, residence, and premises, and disturb him and his family; and that the dust and cinders settle upon and render soiled and filthy the persons and objects on said premises, contaminate the roof of plaintiff's house, and affect the purity of plaintiff's drinking water in his cistern; and that, by reason of all of said facts, the plaintiff's premises have been rendered almost valueless, and are not worth on the market over $500. That, in the widening of said roadbed and tracks, the defendant, wrongfully and without authority, and against the plaintiff's consent, took and appropriated a strip of the plaintiff's land, a part of the lots above described, about 15 to 20 feet wide, running the full length of the lots, and now wrongfully holds possession of said strip, and defendant has converted the same to its own use, to plaintiff's damage in the sum of $500, the reasonable and market value of said strip so appropriated; and that by reason of the things and acts of defendant, and the conduct as hereinbefore alleged, plaintiff and his wife have been subjected continually, day and night, to great physical and mental discomfort, and have been vexed, harassed, and annoyed to a degree almost insupportable, on account of said noises, vibrations, noxious vapors, gases, smoke and cinders, dust and soot, that continually envelop and permeate and affect plaintiff's dwelling and premises, to their damage in the sum of $500. The defendant, for answer, demurred to plaintiff's petition, and generally denied the allegations therein contained, and further alleged that, if any damages had been sustained by the plaintiff, the cause of action was barred by limitation, and that if the plaintiff had suffered any damages they were occasioned and contributed to by the plaintiff's own negligence and want of ordinary care, and that of the defects and causes that produced the injuries, if any were produced, the plaintiff had notice, or by the exercise of ordinary care could have had notice, in ample time to avoid the same. Verdict and judgment in the trial court resulted in favor of appellee for the sum of $450.

The facts are as follows: M. H. Wright in 1880, and after that time, was the owner of the John Gillespie and John Hart surveys of land, adjoining the city of Greenville. M. H. Wright and N. E. Wright, his wife, are common source of title, the appellant and the appellee both holding under them. On the 30th day of January, 1880, Wright and wife executed to the East Line & Red River Railroad Company the following conveyance: "State of Texas, Hunt County. Know all Men by These Presents: That we, M. H. Wright and his wife N. E. Wright, both of said county and state, for and in consideration of one dollar, to us in hand paid by the East Line & Red River Railroad Company, the receipt of which is hereby acknowledged, and for the further consideration that the said railroad company will locate and construct its railroad on, over, and across the following tracts of land, situated in the county of Hunt in said state of Texas, and known and described by metes and bounds as follows, towit: All that part of the John Gillespie and John Hart headrights of land now owned by us, lying west of the town of Greenville, being the land now used and occupied by us as a homestead. Provided, however, that said roadbed be located and constructed on, over, and across that part of said tract as indicated by the last lineal survey made by said company prior to this date, which survey is on and very near the S. B. line of said John Hart Headright, therefore we by these presents give, grant, convey and relinquish unto the said railway company, the full right of way over all of said tracts of land for the purposes of said railroad forever. The right of way shall be in width the space of twenty five feet on each side of the center of the located line of said railroad." April 19, 1889, the charter of the East Line & Red River Railroad Company was forfeited in a suit by the state; a receiver was appointed, and all of its property, rights, and franchises were conveyed to the Sherman, Shreveport & Southern Railroad Company; and that thereafter on the 7th day of May, 1901, the appellant herein duly and legally acquired all the rights, property, and franchises of the Sherman, Shreveport & Southern Railroad Company, and now owns all of such property, rights, and franchises. There are other deeds to the East Line & Red River Railroad Company and to the appellant for other properties than that described in the first deed mentioned, which other property is used by the appellant for yard purposes, etc. Plaintiff's title is connected with a partition deed between Mrs. Wright, the surviving widow of M. H. Wright, and the heirs at law of M. H. Wright, dated the 11th day of June, 1884, in which block 7, where is located plaintiff's land, was set apart to Burchard Wright, the description being as follows: "Beginning at the west boundary line of the original survey 260 1/5 vrs. south of the center of Washington street; thence east 359 varas; thence south 363 1/10 varas; thence 150 varas to the west side of Texas street; thence...