Quanah, A. & P. Ry. Co. v. Wiseman

• Decision Date: 17 January 1923
• Docket Number: (No. 2058.)
• Citation: 247 S.W. 695
• Parties: QUANAH, A. & P. RY. CO. v. WISEMAN et ux.
• Court: Texas Court of Appeals

247 S.W. 695

QUANAH, A. & P. RY. CO. v. WISEMAN et ux.

(No. 2058.)

Court of Civil Appeals of Texas. Amarillo.

January 17, 1923.

Appeal from District Court, Hardeman County; J. A. Nabers, Judge.

Action by W. A. Wiseman and wife against the Quanah, Acme & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Jno. P. Marrs, of Wichita Falls, for appellant.

Hankins & Magee, of Quanah, for appellees.

KLETT, J.

Appellees, Wiseman and wife, as plaintiffs below, obtained a permanent injunction in the district court of Hardeman county, restraining the appellant railway company from erecting right of way fences across a bridged ravine, which plaintiffs claimed the right to keep open as an underground crossing, for the use of their dairy stock, in passing from one part of the farm to another. The plaintiffs alleged:

"That at the time they made a conveyance for and to said right of way, as part of said consideration, it was agreed that this right of passway under said track for his stock was reserved and granted," and "that said passage was left as agreed to in the construction of said railroad, and that plaintiffs have been using same at all times since said construction of railroad, the same being for a period of more than 12 years; and plaintiff's stock have been passing to and fro through said passage since said time."

The defendant's answer included a general demurrer; a special exception, urging the statute of frauds for failure of the plaintiff's petition to show the reservation of the passageway was in writing; a general denial; and a special answer to the effect that the plaintiffs had made the defendant a right of way deed for the consideration of $350 paid, and that no reservation of an open crossing under the track was ever made, and, if made, was not binding under the statute of frauds.

The case was submitted to a jury on special issues. The questions and answers read as follows:

"(1) Was part of the consideration for the execution of the deed to the right of way made by Wiseman and his wife to defendant railway company that the passageway in controversy should be left open? Answer: Yes.

"(2) Did plaintiff and his wife have peaceable and continuous use of said crossing for 10 years, using same during that time prior to the time defendant undertook to close it? Answer: Yes."

"(4) Did defendant or any of its agents or representatives represent to plaintiffs, or either of them, in order to get them to sign the right of way deed, that the crossing under its track at the bridge in question would not be closed? Answer: Yes."

The appellant having attacked the sufficiency of the evidence to support the findings of the jury and the judgment of the court, a brief statement of the facts is appropriate: Appellants are the owners of a 240-acre farm, upon which they are conducting a small dairy business; in 1909 plaintiffs lived in Hall county, Tex., and were asked to give a right of way across their land. At first they refused; they did not want the track over their land. Later the plaintiff Mr. Wiseman visited the office of Mr. Decker, attorney for defendant railroad, to attend to "this right of way business and sign up the deed." Mr. Wiseman had received a request to come down. That was before the plaintiffs moved to the land, but after the road had been built and the opening left under the track. The plaintiff Mr. Wiseman testified:

"I hesitated to sign the deed at all, and Mr. Decker — I told him that I would not sign it unless I was sure of an opening under the trestle all the time, and he says, `There is so much water comes down there you do not need to be uneasy about that ever being closed up,' and I taken it for granted that that was the agreement, and I signed the deed for almost nothing."

The right of way cuts off some 40 or 50 acres on the south. The ravine in question leads to Groesbeck creek, which crosses the 40 or 50 acres mentioned, but does not touch any other part of the farm. Groesbeck creek has the only permanent water there is on the place. If plaintiffs are denied use of the underground crossing then in order to provide water for their stock they will have to dig wells or drive their cattle through the gate crossing, which plaintiff Mr. Wiseman admits was left for him "at the extreme east end of the bridge; that is right opposite to where the water is." Plaintiffs' stock had been passing through the underground crossing in going to and from water in Groesbeck creek for more than 12 years, and the crossing has been open all the time except when plaintiff Wiseman put wire there to corral his stock.

The plaintiff Mrs. Wiseman substantiated the foregoing statement of the facts. D. E. Decker, as witness for defendant, denied making the agreement alleged.

The right of way deed recites that, for $350 paid, the plaintiffs "grant, bargain, sell and convey unto the said Quanah, Acme & Pacific Railway Company, an one hundred foot right of way," and concludes with the following tenendum clause:

"To have and to hold the said premises unto the said Quanah, Acme & Pacific Railway Company, its successors and assignors forever."

The plaintiff Mr. Wiseman says he did not examine the deed to see if it reserved the underground crossing, but he says:

"The understanding I had in regard to the deed was that there was to be an underground crossing so that the cattle could go to water, and I would not have signed the deed if I thought there was anything else. I would not have signed the deed if that had not been understood."

Appellees object to a consideration of appellant's brief because each assignment is not "accompanied with its appropriate propositions and statements." This requirement is not contained in the amended rules, effective September 1, 1921, See 230 S. W. vii.

The appellant's first assignment, urging that the petition is subject to general demurrer, is objected to by appellees, on the ground that the record does not show that the demurrer was acted on by the trial court. If the petition fails to state a cause of action, a judgment based thereon would be fundamental error. City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518; Mack Mfg. Co. v. Oeding (Tex. Civ. App.) 244 S. W. 156. But it appears that the plaintiffs alleged that the underground crossing was reserved. The pleading in that respect supports the judgment. Therefore the assignment and the objection to the assignment are not well taken.

The appellant's proposition that the petition is subject to exception, under the statute of frauds, for failure to allege that the reservation was in writing, cannot be sustained; it not appearing from the petition that the reservation was verbal. King v. Murray (Tex. Civ. App.) 135 S. W. 255 (writ refused).

The appellant's next complaint, as gathered from the various propositions submitted, is that the evidence is insufficient to support the claim that the passageway under the railway track was reserved to the plaintiffs by agreement when the right of way deed was made to the company. If the right of way which plaintiffs claim was reserved for their stock conflicts with the right of way plaintiffs granted to the railway company by deed, it is the opinion of the court that the reservation could not be proven by parol testimony, as the effect of such proof would contradict or restrict the clause of the deed conveying the right of way in violation of the parol evidence rule. Morris v. Hesse (Tex. Civ. App.) 210 S. W. 710 (affirmed in [Tex. Com. App.] 231 S. W. 317); Leeson v. City of Houston (Tex. Com. App.) 243 S. W. 485; Matheson v. C. B. Livestock Co. (Tex. Civ. App.) 176 S. W. 734; Humble Oil & Refining...