Panhandle & S. F. Ry. Co. v. Wiggins

• Decision Date: 23 March 1942
• Docket Number: No. 5412.,5412.
• Parties: PANHANDLE & S. F. RY. CO. v. WIGGINS et al.
• Court: Texas Court of Appeals

Page 501

161 S.W.2d 501

PANHANDLE & S. F. RY. CO. v. WIGGINS et al.

No. 5412.

Court of Civil Appeals of Texas. Amarillo.

March 23, 1942.

Rehearing Denied April 27, 1942.

Appeal from District Court, Hemphill County; Jack Allen, Judge.

Action by R. B. Wiggins and others against Panhandle & Santa Fe Railway Company to recover damages to land. From an adverse judgment, defendant appeals.

Reversed and remanded.

Hoover, Hoover & Cussen, of Canadian, Sturgeon & Sturgeon, of Pampa, and Terry, Cavin & Mills, of Galveston, for appellant.

Sanders & Scott, of Amarillo, for appellees.

STOKES, Justice.

This action was instituted on April 8, 1939, by the appellees, R. B. Wiggins and T. D. Wiggins, who, in an amended petition subsequently filed, were joined by Jeannetta Wilson Lyle, John Marquis Lyle, Abbe Grace Love joined by her husband, Ernest C. Love, Samuel Patterson Lyle, Gerard Lyle, Jeannetta Lyle, and Edward Frank Lyle, the widow and children of E. G. Lyle, deceased, against appellant to recover damages to two sections of land formerly owned by E. G. Lyle and conveyed to the Wigginses in 1929. The damage was alleged to have been the result of the construction by appellant of a dyke or jetty some 2100 feet in length upon its right of way and extending 655 feet beyond the right of way onto appellees' land, for the purpose of controlling the waters of Red Deer Creek which runs alongside the right of way of appellant's railroad. The soil of appellees' land was of a sandy nature and they alleged, in substance, that the construction of the dyke diverted the flow of the water in Red Deer Creek from its natural course and, during freshets, floods and rises in the creek, caused it to flow against the bank and over the area opposite the dyke and right of way. They alleged that several hundred acres of their land had been washed away and the entire two sections damaged to the extent and value of $12,500. They alleged that in 1921, appellant began the erection of the dyke, and E. G. Lyle, the owner of the land, protested the same which resulted in negotiations between E G. Lyle, accompanied by his counsel, and representatives of appellant, and that these negotiations terminated in an agreement that appellant might continue with the work and erect the dyke as planned, but that if it should thereafter cause injury and damage to the land, appellant would pay the damages and remove the dyke. They further alleged that it was agreed in these negotiations that Mr. Lyle's attorney would write a letter to the general office of appellant at Amarillo, setting forth the agreement reached in the negotiations and that if appellant consented to the conditions agreed upon in the conference, its acquiescence would be manifested by a reply to the letter or by its continuance of the work of erecting the dyke. They alleged that after the conference E. G. Lyle's attorney wrote the letter to the general office of appellant setting forth substantially the agreement reached in the negotiations and that appellant thereafter resumed the construction of the dyke, thus acquiescing in and agreeing to the conditions set forth in the letter, and that this constituted, in effect, a written contract under which appellant would erect the dyke and pay any damages that might result from its establishment. Appellees alleged that a large portion of the land had been washed away and destroyed between May 1, 1935 and April 8, 1937, and that floods, freshets and rises in Red Deer Creek as the result of heavy rains damaged, injured and destroyed a large portion of the land between April 8, 1937 and April 8, 1939, when the suit was filed.

Appellant answered by the general issue, a large number of special exceptions and various pleas of limitation, the nature of which will be revealed in our discussion of the case.

The case was tried before a jury and submitted upon special issues, in answer to which the jury found: (1) That in the negotiations above mentioned it was agreed that the attorney of E. G. Lyle would write the letter, as we have indicated; that such letter was written and mailed by him to appellant's general office; that appellant received the letter, and afterwards proceeded with the construction of the dyke; (2) that the dyke erected on appellees' land diverted the natural flow of the waters of Red Deer Creek and resulted in injury to appellees' land; (3) that the difference between the market value of the land on May 1, 1935, and its market value on April 8, 1937, caused by the maintenance of the dyke, exclusive of all other causes, was $1,500; and (4) that the difference in the market value of the land on April 8, 1937, and its market value on April 8, 1939, caused by the maintenance of the dyke on appellees' land, exclusive of all other causes, was $1,250.

Based upon the verdict, the court entered judgment in favor of appellees for the sum of $1,500 with interest thereon at the rate of six per cent per annum from April 8, 1937, and for the further sum of $1,250 with interest thereon at the rate of six per cent per annum from April 8, 1939.

Appellant presents and urges a large number of assignments of error and propositions of law which we think may be reduced to four controlling issues. It contends, first, that the court erred in submitting special issues and permitting recovery by the appellees Lyles; secondly, that error was committed in submitting special issues and permitting recovery by any of the appellees upon the alleged contract which resulted from the negotiations concerning the erection of the dyke; thirdly, it contends that the court erred in refusing to submit specially requested charges to the jury upon the question of injury and damage to the land caused by erosion on the west side of the creek and water entering Red Deer Creek from the ravines and hills located on the west side and opposite the dyke and right of way; and, fourthly, it assigns error of the court in refusing special issues requested by it upon the question of whether or not the dyke had been of benefit to some of the land.

The first contention, as arranged by us, raises the question of whether or not the Lyles were entitled to recover and were necessary or proper parties to the suit. The record shows that the land belonged to E. G. Lyle until sometime in 1929, when it was sold and conveyed by him to appellees, R. B. Wiggins and T. D. Wiggins. As part of the consideration the Wigginses executed a series of vendor's lien notes, the amount and balance due thereon not being shown by the record although it is shown that the entire series had not been discharged at the time of the trial. The Lyles plaintiffs did not allege nor prove any injury or damage other than that which was alleged as having accrued to the other plaintiffs. The petition and the evidence go no further in respect to their rights or damages than to allege and prove the sale on February 1, 1929, by their deceased father, E. G. Lyle, to the Wigginses, the execution by the purchasers of a series of notes as part of the purchase price and the reservation of a vendor's lien to secure the same. The judgment was in favor of all of the appellees, no specific sum being decreed to any of them. Under the pleadings and the evidence, the Lyles were nothing more than mortgagees out of possession. If they were entitled to recover in this action it was only by virtue of injury to their security and they did not allege nor prove any such injury. Even though they held the superior title as between them and the other appellees, they stood only in the relation of mortgagees of the land and were not entitled to possession until default in the payment of some of the indebtedness and a rescission by them of the contract. Appellant urged exceptions to the petition in so far as it attempted to plead a cause of action in favor of the Lyles, which exceptions were overruled by the court. In this we think the court committed error, although, of itself, it is probably not of sufficient importance to furnish a basis for reversing the judgment. The Lyles had the right to allege any damages to which they were legally entitled which, as we have said, could only have been such damages as arose to their security by the acts of appellant. This they failed to do, and, not having done so, they had no right further to participate in the trial. Smith et al. v. Frio County, Tex.Civ.App., 50 S.W. 958; Carey et al. v. Starr et ux., 93 Tex. 508, 56 S.W. 324; Shell Pipeline Corporation v. Guthrie et ux., Tex.Civ.App., 21 S. W.2d 710.

Appellant's next contention raises the principal question presented by the appeal. As we have stated, appellees set up the alleged contract entered into between E. G. Lyle and agents and representatives of appellant in 1921, which provided, in effect, that appellant should have permission to build the dyke, but that it would pay any damages that might accrue to the land and remove the dyke if it caused injury and damage to the land. Under this contract appellees sought and recovered damages which they alleged accrued between May 1, 1935 and April 8, 1937, upon the theory that it constituted a covenant running with the land. The suit was not filed until April 8, 1939, and appellees were therefore permitted to recover for damages and injury to the land which occurred more than two years prior to the institution of the cause of action. Appellant excepted to the petition in so far as it attempted to allege a cause of action based upon the contract under which appellant was permitted to establish the dyke, and its exceptions were overruled. Moreover, the court submitted special issues to the jury concerning damages that were alleged to have accrued to the land by overflow of the creek between May 1, 1935 and April 8, 1937, and the jury found that the land had been damaged during that period to the extent of $1,500. This item constituted a portion of the judgment in favor of appellees. Appellant excepted to the...