Oklahoma City & T. R. Co. v. Dunham

• Decision Date: 27 May 1905
• Citation: 88 S.W. 849
• Parties: OKLAHOMA CITY & T. R. CO. v. DUNHAM.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

88 S.W. 849

OKLAHOMA CITY & T. R. CO. v. DUNHAM.^*

Court of Civil Appeals of Texas.

May 27, 1905.

Appeal from District Court, Hardeman County; S. P. Huff, Judge.

Action by R. D. Dunham against the Oklahoma City & Texas Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

C. H. Yoakum and D. E. Decker, for appellant. Muse & Allen and L. H. Mathis, for appellee.

CONNER, C. J.

In July, 1887, Gen. G. M. Dodge was the owner of several hundred acres of land traversed by the Ft. Worth & Denver City Railway Company, and caused to be made a map or plat thereof for the proposed town of Quanah. The plat was recorded, showing the streets running east and west to be 60 feet in width, and parallel with the Denver Railway, and those running north and south to be 80 feet in width, with the exception of McClelland avenue, which was 100 feet. The plat also showed certain blocks of land to be reserved for public building purposes and parks, and at a point where McClelland avenue intersected the Denver Railway quite a body of land was reserved for railway purposes and for a tank. Gen. Dodge at the time the plat was recorded also recorded a dedication deed, of which the following is a copy:

"Know all men by these presents: That, whereas, I, G. M. Dodge, have heretofore, to wit, on the first day of August, A. D. 1887, filed a map of the town of Quanah, in the county of Hardeman and state of Texas, in the office of the Clerk of the county court of said county, to be recorded in the Record of Deeds of said county together with this deed of dedication, which is intended to be a part thereof. That said Town of Quanah is situated immediately upon the line of the Fort Worth & Denver City Railway upon Surveys 141, 142, 149 and 150, standing in name of Waco and Northwestern Railway Co. upon the official map of said Hardeman county on file in the General Land Office of the State of Texas. And I, after reserving the right to grant to any railway or railway companies the right of way over Browning and McClelland Avenues, do hereby grant, give and dedicate to the public a highway, such portion of each and all of the streets and alleys, designated on said map, as may be contiguous to or adjoining any lots or adjoining any lots or blocks of land so laid out on said map, which have been or may hereafter be conveyed by me to any other person, all other streets and alleys designated on said map, or portions of them, not contiguous to lots and blocks conveyed, are to be and remain my private property, and may be replatted or closed up or occupied by me at my option.

"Witness my hand this 2nd day of July, A. D. 1887. G. M. Dodge."

After the plat and the dedication deed were recorded, Dodge began to sell town lots, and among other sales was lot 9 in block 112, upon which plaintiff in 1899 erected a house; having purchased the lot from Offut, a vendee of Dodge. In the deed from Dodge to Offut, in describing the lot, after stating lot and block number, the deed stated, "according to the map of said town of Quanah recorded in book 3 pages 171 and 173 deed record Hardeman Co."; this being the place of record of said deed and plat. The deed from Offut to Dunham contained a like reference to the plat. On June 22, 1902, Dodge, by deed of that date conveyed to defendant, Oklahoma City & Texas Railroad Company, a strip 56 feet in width from the west side of said McClelland avenue, in the following language: "by the present do grant, bargain, sell, convey and relinquish, unto said railway, its successors and assigns (for railroad telegraph and telephone right of way purposes) the right of way upon, over and along said McClelland Avenue." The defendant railway company about the same time acquired by purchase from various parties the fee-simple title to 100 feet adjoining McClelland avenue on the west side. It also obtained from the city council of the city of Quanah permission to construct its tracks in and on McClelland avenue and the 100-feet purchase strip. About April 1, 1903, defendant railway company completed the construction of its tracks and depot, and began operating trains into Quanah. It constructed on McClelland avenue, on the west 56 feet allowed from Dodge, its main track and one side track, and near to appellee's residence, and between said avenue and said residence, on the 100 feet purchased, defendant erected its passenger and freight depot, and one side track, called the "house track"; the same being constructed between the depot and plaintiff's residence. There was on the 100 feet between plaintiff's lot on McClelland avenue a residence occupied by a family prior to the construction of the railway, which was moved out to make room for the depot. Between plaintiff's residence and the house track there was about 40 feet of space, which has since the construction of the track been used as a passageway for the public. The passageway or street opens into the street running east and west in front of plaintiff's house.

The plaintiff filed a petition setting up ownership of the lot in controversy, and alleged that the defendant, by constructing its track and depot as stated, and by operating cars, engines, and trains on said railway, had diminished it in its market value in the sum of $750. The defendant interposed as a defense that plaintiff purchased his lot and constructed his improvements with knowledge that McClelland avenue would probably be used for railroad right of way, and that Dodge, the...