Parker v. Ft. Worth & D. C. Ry. Co.

• Decision Date: 15 April 1892
• Citation: 19 S.W. 518
• Court: Texas Supreme Court
• Parties: PARKER v. FT. WORTH & D. C. RY. CO.

19 S.W. 518

PARKER v. FT. WORTH & D. C. RY. CO.

Supreme Court of Texas.

April 15, 1892.

Appeal from district court, Wichita county; P. M. STINE, Judge.

Action by Walter Parker against the Ft. Worth & Denver City Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

W. W. Flood, for appellant.

STAYTON, C. J.

This is an action of trespass to try title, instituted by appellant to recover a section of land patented to Simeon Stark, from whom he deraigned title by regular chain of transfer. Appellee, after having first made defense to the entire action, disclaimed as to all the land sued for, except a strip of land 100 feet wide, extending through the grant, over which it claimed to have acquired right of way through proceedings in condemnation instituted on May 15, 1882, which was prior to the purchase of the land by appellant. Judgment was rendered in favor of the plaintiff for the land, subject to the defendant's right of way, which it was held had vested in defendant. The petition seeking condemnation alleged that the owners of the land were unknown; that the company had laid out its line through Wichita county, and was then engaged in constructing its road; and that "it is necessary that the line thereof should run and the same has been laid out over and through a parcel of land in said county described as follows, to wit: Being a survey or head right in the name of S. A. & M. G. R. R. Co., and situated about fifteen miles from the town of Wichita Falls, located by virtue of said company scrip No. 21/210, abstract No. 274, patented to Simeon Stark, Dec. 12, 1874, patent No. 330, vol. 7, containing 640 acres of land, — and said line, as located and to be constructed, enters said tract of land on its eastern boundary, and, running in N. W. direction, passes out of said tract of land, on the western boundary line of the same, and embraces a width of 50 feet on each side of the center line of said railway as located." On the same day the county judge appointed commissioners to assess the damages "on the land described in said petition by reason of the construction of said railroad thereon." On June 26, 1882, the commissioners made a report, in which they stated that after giving notice to parties as required by law they heard evidence, in the absence of the owner, "as to the land described in the petition, and the damages thereto by reason of the construction of the railway thereon, and assess the damages thereto at eighteen 75-100 dollars." On this report, on July 13th following, the county judge entered a decree, which recited an inspection of the petition, notices, report of the commissioners, and declared that the petition was duly filed, the commissioners regularly appointed, and that the owners of the land sought to be condemned had been served with notice. The decree then declares that the damages had been deposited in court subject to the order of the owners of the land, and decreed "that the right of way in, to, and through the following described tract or parcel of land, situated in the county of Wichita and state of Texas, to wit, being a survey in the name of the San Antonio & Mexican Gulf Railroad, situated about 15 miles west from the town of Wichita Falls, located by said company scrip No. 21/210, and patented to Simeon Stark, December 12, 1874, pat. No. 330, vol. 7, and known by `Abstract No. 274,' containing 640 acres of land, be granted to and vested in the Fort Worth & Denver City Railway Company, its successors and assigns, forever."

Many objections were urged to the admission in evidence of the petition seeking condemnation of right of way, to the report of the commissioners, and to the decree of condemnation, but it is not necessary to notice more than two of them. It was urged that the decree was inadmissible, in the absence of evidence that such notice had been given to owners as the law prescribes, and we are of opinion that this objection should have been sustained. The proceeding to condemn land for public use is special in its character, and its validity must depend upon a compliance with the law authorizing it. Nothing is to be presumed in favor of the power of such a special tribunal, and it is incumbent on one seeking to show right under its decree to show that the court had acquired jurisdiction to render it. Notice to the owner of the land sought to be condemned is necessary to jurisdiction, and this cannot be presumed from declarations contained in the report of the commissioners, nor from recitals in the decree of condemnation, but must be proved. Commissioners v. Thompson, 15 Ala. 139; Barnett v. State, Id. 829; Molett v. Keenan, 22 Ala. 484; Inhabitants v. Pope, 1 Mass. 87; Southard v. Ricker, 43 Me. 576; Prentiss v. Parks, 65 Me. 559; Leavitt v. Eastman, 77 Me. 119; Dupont v. Commissioners, 28 Mich. 362; Daniels v. Smith, 38 Mich. 660; Lane v. Burnap, 39 Mich. 736; Nielsen v. Wakefield, 43 Mich. 434, 5 N. W. Rep. 458; Whitely v. Platte Co., 73 Mo. 30; State v. Otoe Co., 6 Neb. 130; Semon v. City of Trenton, 47 N. J. Law, 490, 4 Atl. Rep. 312; Thompson v. Multnomah Co., 2 Or. 41; State v. Officer, 4 Or. 182; Appeal of Central Ry. Co., 102 Pa. St. 38; Railway Co. v. Troesch, 57 Ill. 155. This is the general rule as to proceedings of special tribunals. Mitchell v. Runkle, 25 Tex. Supp. 137; Freem. Judgm. 123. The statute requires that the commissioners shall issue "notices in writing to each of the parties, notifying them of the time and place selected for the hearing." Rev. St. art. 4186. The manner and time of service is also prescribed, and, when the owner is unknown, this service may be made by publication. Id. arts. 4187, 4189, 4190. "The person making such service shall return the original notice to said commissioners, or any one of them, on or before the day set for the hearing, with his return in writing thereon, stating how and when the same was served." Id. art. 4188. Until these provisions of the statute are complied with, the commissioners have no authority to assess damages or to make a report, and the court has no jurisdiction to declare the condemnation. The commissioners are required to make a report wherein must be stated the amount of damages due to the landowner, and they are required to return with this "all other papers connected with the case," (Rev. St. art. 4197;) but the statute does not authorize them to state their conclusions...