Rio Grande & E. P. Ry. Co. v. Ortiz

• Decision Date: 17 January 1890
• Citation: 12 S.W. 1129
• Parties: RIO GRANDE & E. P RY. CO. <I>v.</I> ORTIZ.
• Court: Texas Supreme Court

12 S.W. 1129

RIO GRANDE & E. P RY. CO.v.

ORTIZ.

Supreme Court of Texas.

January 17, 1890.

Appeal from district court, Webb county; J. C. RUSSELL, Judge.

Atlee & Earnest and A. L. McLane, for appellant. W. Showalter, for appellee.

GAINES, J.

This suit was brought by appellee to recover of appellant the sum of $800. The cause was submitted to the court under a statement of facts agreed upon by the parties, and resulted in a judgment for plaintiff for the whole amount claimed. The statement agreed upon as the evidence in the case is as follows: First. Juan Ortiz, as plaintiff, recovered in the district court of Webb county, on March 27, 1884, against the Rio Grande & Pecos Railway Company, defendant, in cause No. 297 on the docket of said court, a judgment, by agreement of parties, for $800, and interest from date thereof at 8 per cent., besides costs of suit, for all which execution was awarded, and on which judgment said plaintiff paid all costs, to-wit, $35. Second. In June, 1884, execution was issued and returned not satisfied. Third. The said judgment was the measure of damages to the plaintiff, Ortiz, for right of way over his land which the said Rio Grande & Pecos Railway Company entered and used for its right of way until succeeded in such use of the land by the Rio Grande & Eagle Pass Railway Company, which has continued its use of the land to the present time. Fourth. That said judgment, and no part of it, has been paid, and plaintiff, Ortiz, is still the owner of the judgment. Fifth. That at the suit of the first mortgage bondholders a receiver was appointed by the United States court having jurisdiction on April 9, 1884, the suit being to foreclose their lien on the Rio Grande & Pecos Railway; and the receiver took possession of all the property of said road. Sixth. That on June 11, 1884, a special master in chancery was appointed by the court, who was directed to ascertain and report upon all claims which might be presented to him against said railway company, and of all persons having or asserting any liens or claims, by judgment or otherwise, prior to the first mortgage bonds, and upon all claims entitled to preference of payment out of the proceeds of said railway, which was to be sold to satisfy the demands of the creditors of said railroad, and the mortgage lien thereon foreclosed. Seventh. That due notice was given to the plaintiff and all creditors to present their claims before said master; that plaintiff presented said judgment to the master as a claim to be paid out of the proceeds of said railroad, which claim was not allowed by the court. Eighth. That about June 20 1885, the Rio Grande & Pecos Railway was sold by order of the court, to be held and possessed by the purchaser free from all liens and incumbrances whatsoever; and the proceeds thereof were ordered to be applied to the payment of the mortgage bonds, after payment of all claims allowed by the court as having preference over said bonds. Ninth. That defendant, the Rio Grande & Eagle Pass Railway Company, is the owner of all the property of the Rio Grande & Pecos Railway Company, having acquired the same by purchase at the trustee's sale made by order of the United States circuit court, which order decreed that the purchaser should acquire free from all liens and incumbrances whatsoever.

It is insisted that the judgment is erroneous — First, upon the ground that the plaintiff, having elected to sue the Rio Grande & Pecos Railway Company for damages for appropriating his land without asserting his lien in that action, had waived the lien, if any ever existed; second, for the reason that his right of asserting a lien, and of claiming any recovery, against appellant, was concluded by the action of the United States court upon his claim: and, third, because the plaintiff, even if entitled to recover anything, was not entitled to recover the damages as assessed in the former suit between him and the former company.

In regard to the first ground, we are of the opinion that the plaintiff was not bound to show that he had a lien upon the property in order to maintain this action. As we construe the statement, the Rio Grande & Pecos Railway Company entered upon his land, and made use of so much of it as was needed for its right of way, for railroad purposes, without having resorted to the method provided by law for its condemnation to that use. The company, by virtue of its franchises, had the right to appropriate the land, provided it first paid a just compensation to the owner, to be assessed in the manner prescribed by the statute. This the plaintiff could not prevent. But, the company having already occupied the land without either the payment or assessment of any compensation, he had two methods of enforcing his rights. The first was by an action for the recovery of the land, which would have forced the company to take the statutory measures for its condemnation; and the second was to bring a direct action to recover his damages for the appropriation of the land. Railway Co. v. Benitos, 59 Tex. 326. An injured party may sometimes waive a tort, and sue as upon an implied contract; but that is probably not the principle upon which the right of action should be sustained when the owner sues for his damages. At all events, the case is somewhat different from that of an ordinary trespass. The ultimate rights of the parties are that the railroad company is entitled to the easement...