Perry v. Wichita Falls, R. & F. W. R. Co.

• Decision Date: 07 January 1922
• Docket Number: (No. 9707.)
• Citation: 238 S.W. 276
• Parties: PERRY et al. v. WICHITA FALLS, R. & F. W. R. CO.
• Court: Texas Court of Appeals

238 S.W. 276

PERRY et al. v. WICHITA FALLS, R. & F. W. R. CO.

(No. 9707.)

Court of Civil Appeals of Texas. Fort Worth.

January 7, 1922.

Rehearing Denied February 18, 1922.

Appeal from Erath County Court; E. E. Solomon, Judge.

Suit by the Wichita Falls, Ranger & Fort Worth Railroad Company against T. H. Perry and others to condemn a right of way across lands owned by defendants. From a judgment of condemnation entered in accordance with the verdict of the jury, defendants appeal. Affirmed.

Thompson & Pittman, of Stephenville, for appellants.

Chandler & Pannill and J. A. Johnson, all of Stephenville, for appellee.

DUNKLIN, J.

The Wichita Falls, Ranger & Fort Worth Railroad Company instituted this suit against T. H. Perry and others to condemn a right of way across certain land owned by the defendants, situated in Erath county, about four miles from the town of Dublin.

The case was tried before a jury, to whom was submitted special issues. The amount of land actually taken for right of way purposes was 3.43 acres, and the jury allowed the defendants therefor the sum of $171, which was the full amount claimed by the defendants. The jury also allowed $179 as damages to the remainder of the land not so taken, and from a judgment entered in accordance with that verdict the defendants have appealed.

The trial court sustained exceptions to several sums of money which were claimed by the defendants by way of special damages to the land not taken for right of way purposes; one claim being for $1,000, by reason of alleged destruction of what was claimed by the defendants as a suitable building site, another being for $250 for removing that part of defendants' fence which crossed the right of way, and another one for $500 for the failure of the railroad company to fence its right of way. There was no error in that ruling. The allegation of facts constituting the two first items of special damages were permitted to remain in the petition. We know of no ruling that would allow the recovery of special damages by reason of any of those facts. Articles 6518, 6520, and 6521, V. S. Tex. Civ. Statutes, read as follows:

Article 6518. "Said commissioners shall hear evidence as to the value of the property sought to be condemned, and as to the damages which will be sustained by the owner thereof by reason of such condemnation, and as to the benefits that will result to the remainder of such property belonging to such owner, if any, by the construction and operation of such railroad, and shall according to this rule assess the actual damage that will accrue to such owner by said condemnation."

Article 6520. "When only a portion of a person's real estate is condemned, the commissioners shall estimate the injuries sustained and the benefits received thereby by the owner as to the remaining portion of such real estate; whether such remaining portion is increased or diminished in value by such condemnation, and the extent of such increase or diminution, and shall assess the damages accordingly."

Article 6521. "In estimating either the injuries or the benefits, as provided in the preceding article, those injuries or benefits which the owner of such real estate sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use and enjoyment of the particular parcel of land, shall be altogether excluded from such estimate."

Those articles not only control commissioners appointed to assess damages in condemnation proceedings, but also are applicable in the trial of the same issues upon appeal from the award made by the commissioners, as occurred in the present suit; and they do not authorize a recovery of any special damages. The failure of the railroad company to fence its right of way could not be said to be of permanent duration, and hence could not in any event be considered as a permanent injury to the land. For such failure the law punishes the railroad company by way of damages for any stock that may be killed upon the track where the right of way is not fenced. And the right of way may be fenced at any time.

The trial...