Olive v. Sabine & E. T. Ry. Co.

• Decision Date: 31 October 1895
• Citation: 33 S.W. 139
• Parties: OLIVE et al. v. SABINE & E. T. RY. CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

33 S.W. 139

OLIVE et al. v. SABINE & E. T. RY. CO.¹

Court of Civil Appeals of Texas.

October 31, 1895.

Appeal from district court, Hardin county; L. B. Hightower, Judge.

Action by the Sabine & East Texas Railway Company against Olive, Sternenberg & Co. There was a judgment for plaintiff, and defendants appeal. Affirmed.

P. A. Work and Hume & Kleberg, for appellants. Baker, Botts, Baker & Lovett and Votaw & Chester, for appellee.

WILLIAMS, J.

This suit, as originally instituted, was, in form, an action of trespass to try title, by appellee, to recover of appellants its right of way across the James Pearson tract of land, in which it was alleged that appellants had entered upon such right of way, and ousted plaintiff therefrom. Appellants, in their answer, claimed, in substance, that they were the owners of the fee-simple title to the Pearson tract, and were making only such use of the land included within appellee's right of way as they were entitled to make as such owners. They set out in detail the facts, showing the character of their use of the land, and the structures and improvements which they had made upon it. The latter are more fully stated below. Appellee thereupon filed additional pleadings, contesting the right of appellants to maintain upon its right of way the structures and improvements described in the answer, and claiming that such use of the land by the owner of the fee was inconsistent with its enjoyment of its right of way over the land, and asked for judgment requiring appellants to remove such structures. Appellants, by their pleadings, asked for compensation for the value of the improvements in case they were required to remove them, alleging that they had been made in good faith.

The facts upon which the decision turns are sufficiently stated in the pleadings, and shown by the evidence, and, as stated by counsel for appellants, are as follows:

"(1) In 1881 appellee entered upon the James Pearson 160-acre tract of land, in Hardin county, Texas, and constructed its roadbed and railway track thereon, and across the same, and has ever since that time continuously and openly used and operated the same.

"(2) Thereafter, on November 3, 1881, Olive & Sternenberg leased, for a period of 10 years, from the then owner in fee, the East Texas Land Company, the said James Pearson survey. The lease provided that the lessees might locate, build, and maintain a sawmill and other buildings necessary for the transaction of a lumber-milling business on said tract of land. Said lessees went into immediate possession of said land under said lease, erecting improvements thereon, and they and their successors have remained in possession of said tract of land ever since said time.

"(3) On the 29th day of March, 1884, appellee obtained from the East Texas Land Company a deed, conveying to it, for the purpose of constructing, operating, and maintaining its railroad, the right of way, 200 feet in width, over and upon, among other surveys, said James Pearson survey.

"(4) On the 22d day of September, 1887, before the expiration of their said lease, Olive & Sternenberg purchased by warranty deed the fee of said Pearson survey from the East Texas Land & Improvement Company, the immediate vendee of the East Texas Land Company, of which last-named company they had theretofore, November 3, 1881, leased said land; said deed conveying all of the James Pearson tract of land to Olive & Sternenberg, saving and excepting the right of way conveyed to appellee by said deed of March 29, 1884.

"(5) December 7, 1889, appellants, Olive, Sternenberg & Co., succeeded Olive & Sternenberg in the ownership and possession of all the land, buildings, and improvements, and rights and privileges in controversy in this suit.

"(6) From November 3, 1881, until the 22d day of September, 1887, Olive & Sternenberg erected on said Pearson survey, within 100 feet of the center of each side of plaintiff's roadbed and railway track, the following buildings and structures: One grain house; part of planing-mill building, 200 feet in length; a mill business office, with cistern and shed therefor; a storehouse; a retail liquor house; one drugstore and physician's office, combined; one-half dwelling house; a half, each, of three other dwelling houses; one-fourth of another dwelling house; and a portion of a fifth dwelling house,—i. e. a portion of said last-named structures being within the said 100 feet, and the balance thereof being outside thereof. After said 22d day of September, 1887, up to the 7th day of December, 1889, Olive & Sternenberg placed the following structures, and planted the following trees and vines, within said 100 feet: One residence; the front gallery and corner of a second residence; an elevated water tank, and pipes and hydrants connected therewith; barber shop; feed house; 6 peach trees, 6 apple trees, 30 plum trees, 47 fig trees, 158 pear trees, and 530 grapevines. After said date, and up to the time of the institution of this suit, appellants, Olive, Sternenberg & Co., owned, besides the property hereinbefore described, situated within 100 feet on each side of the center of appellee's railroad track, the following property A switch or a side track, extending from plaintiff's said track to, along, and parallel with the grain warehouse and sawmill of appellants; a switch or a side track, extending from plaintiff's said railroad track to, along, and parallel with the planing mill and dry kiln belonging to appellants; a road, laid with cross-ties and iron rails, and known as the "dolly way"; a logging railroad, which— as also said dolly way—was constructed and run at right angles with plaintiff's railroad track, and across the same, and extending on each side for more than 100 feet from the center of plaintiff's railroad track.

"(7) During the trial of the cause appellee limited its action to a prayer for a decree requiring appellants to immediately remove from the limit of its alleged right of way the following structures: One grain house; part of planing mill; a mill business office, with cistern and shed therefor; a storehouse and retail liquor house; one drug store and physician's office, combined,—and also portions of the following structures: One-half of three dwelling houses, one-half of another dwelling house, a portion of another dwelling house, the front gallery and the corner of a residence; also, one other dwelling house, a residence, a house used as a barber shop, and a feed house used for the storing of forage. Appellee's prayer for the removal of the other structures hereinbefore described, and of the trees and fences, was by it finally withdrawn.

"(8) Appellee's railroad has been operated, with the aforesaid structures and trees upon its right of way, for some 12 years. No specific or needful public use by appellee of the ground occupied by appellants' improvements was shown. Appellee's train master testified, that, in his opinion, the trees, fences, and structures of appellants tended to increase the dangers of fire by sparks from the engines, and liability of killing stock at said place, but admitted, upon cross-examination, that, so far as he knew, there had never been a fire at said place, and that he did not know that any stock was ever killed there.

"(9) Appellants' structures have not interfered with the expeditious handling of appellee's freight and passenger traffic, and it has in no way been inconvenienced by the presence of said structures upon its right of way, except as may appear from the evidence above stated. Testimony showing that the buildings and structures had been placed on said alleged right of way with the consent and acquiescence of the appellee, as well as testimony offered by the appellants to show the value of said improvements, was, upon objection of appellee, excluded, as appears from the bills of exception in the record."

The case was tried before a jury, and verdict was returned for plaintiff, on which the court gave judgment for plaintiff for the recovery of the right of way, as described, and requiring defendants to remove therefrom the structures mentioned in paragraph 7 of the above statement and for costs.

The leading contention of appellants is that neither the pleadings nor evidence stated a case in which appellee, as the owner of the easement of a right of way, had a right to the relief sought against them as the owners of the fee. We find it unnecessary to discuss, separately, the pleadings and the evidence. The facts upon which we base our decision appear from both, all of the alleged facts...