Missouri-Kansas-Texas Ry. Co. of Texas v. Wells

• Decision Date: 09 June 1925
• Docket Number: (No. 3086.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 275 S.W. 218
• Parties: MISSOURI-KANSAS-TEXAS RY. CO. OF TEXAS v. WELLS et al.
• Court: Texas Court of Appeals

275 S.W. 218

MISSOURI-KANSAS-TEXAS RY. CO. OF TEXAS v. WELLS et al.

(No. 3086.)^*

Court of Civil Appeals of Texas. Texarkana.

June 9, 1925.

Rehearing Denied June 18, 1925.

Appeal from District Court, Grayson County; Silas Hare, Judge.

Action by T. P. Wells and another against the Missouri-Kansas-Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Affirmed.

This suit by appellees against appellant was to recover $25 as a penalty and $1,080 as damages the former claimed to be entitled to because of the violation, it was alleged, of articles in Vernon's Statutes as follows:

"Art. 6601. It shall be unlawful for any railroad or railway company or corporation during business in this state to permit any Johnson grass or Russian thistle to mature or go to seed upon any right of way owned, leased or controlled by such railroad or railway company or corporation in this state.

"Art. 6602. If it shall appear upon the suit of any person owning, leasing or controlling land contiguous to the right of way of any such railroad or railway company or corporation that said railroad or railway company or corporation has permitted any Johnson grass or Russian thistle to mature or go to seed upon their right of way, such person so suing shall recover from such railroad or railway company or corporation the sum of twenty-five dollars, and any such additional sum as he may have been damaged by reason of such railroad or railway company or corporation permitting Johnson grass or Russian thistle to mature or go to seed upon their right of way; provided, any owner of land, or any person controlling land, contiguous to the right of way of any such railroad or railway company, who permits any Johnson grass or Russian thistle to mature or go to seed upon said land, shall have no right to recover from such railroad or railway company as provided for in this article."

In their petition appellees alleged that the statute was violated during the year 1922 and until January 18, 1923, by C. E. Schaff, who, as receiver, was operating the line of railway which then belonged to the Missouri, Kansas & Texas Railway Company of Texas, and that same was violated by appellant during said year 1923 after said January 18, 1923, when it became the owner of said line of railway. At the trial, the parties agreed that said Schaff, as receiver, had charge of the properties of said Missouri, Kansas & Texas Railway Company of Texas and operated its line of railway as charged. They agreed, further, that the appellant company, a new company, was —

"organized and chartered by the state of Texas, in accordance with the provisions of chapter 11, tit. 115, art. 6625, Revised Statutes of Texas, to which said new company all of said properties and lines of railway of the Missouri, Kansas & Texas Railway Company of Texas were on February 23, 1923, duly conveyed and delivered and said new company has since February 23, 1923, been and is now operating said lines of railway in Texas, one of which lines is the one which runs from Denison through Bells, Texas, to Dallas, and its right of way is contiguous to the land alleged in the petition of plaintiffs to belong to them and to have been damaged by Johnson grass."

It appeared in the testimony that the line of railway specified ran north and south. It appeared further that the east boundary line of appellees' tract of land was the west boundary line of the railway right of way a distance of 1,650 yards, and that the south boundary line of the land was the north boundary line of a public road a distance of 800 yards. It appeared further that during the years 1922 and 1923 Johnson grass was permitted to mature seed on the railway right of way, on the Carter farm east of and adjoining the right of way, on the public road and on the Andrews farm south of and adjoining the public road. There was testimony that during the years mentioned portions of appellees' land never before so infested became infested with Johnson grass, and that 90 per cent. of such infestation was along the railway right of way and within a distance of not exceeding 150 yards from same.

Special issues were submitted to the jury, and they found as follows:

(1) During the year 1922 seed from Johnson grass said Schaff had permitted to mature on the right of way of said Missouri, Kansas & Texas Railway Company of Texas contiguous to appellees' land was carried from said right of way to appellees' land and caused Johnson grass to grow thereon, and during the year 1923 seed from Johnson grass appellant permitted to mature on said right of way were carried therefrom to appellees land and caused Johnson grass to grow thereon.

(2) Appellees' land was damaged by Johnson grass from seed so carried thereto during the year 1922 in the sum of $200, and by grass from seed so carried thereto in 1923 in the sum of $450.

(3) Appellees did not permit Johnson grass growing on their land to mature seed during said year 1923.

The appeal is from a judgment in appellees' favor against appellant for $675 — the amount of the damages found by the jury and the penalty provided for by the statute.

Chas. C. Huff and A. H. McKnight, both of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant.

Webb & Webb, of Sherman, for appellees.

WILLSON, C. J. (after stating the facts as above).

Appellant's contention, that it was not liable in any event for damage to appellees' land, caused by seed carried thereto from Johnson grass on the right of way during the year 1922, is on the theory that its agreement in conformity to the requirement of articles 6624 and 6625, Vernon's Statutes, to take and hold the property and franchises of the Missouri, Kansas & Texas Railway Company of Texas subject to the payment of subsisting liabilities and claims "for loss of and damage to property sustained in the operation of the railroad by the company or by any receiver thereof," did not include damage arising from a violation of articles 6601 and 6602, Vernon's Statutes, set out in the statement above. The argument is that such damage was not "damage sustained in the operation of the railroad" within the meaning of said articles 6624 and 6625. One of the meanings of the word "operation," according to the Century Dictionary, is "the course of action or series of acts by which some result is...