San Antonio & A. P. Ry. Co. v. Hunnicutt

• Decision Date: 23 February 1898
• Citation: 44 S.W. 535
• Court: Texas Court of Appeals
• Parties: SAN ANTONIO & A. P. RY. CO. v. HUNNICUTT.

44 S.W. 535

SAN ANTONIO & A. P. RY. CO. v. HUNNICUTT.

Court of Civil Appeals of Texas.

February 23, 1898.

Error from district court, Falls county; Samuel R. Scott, Judge.

Suit by R. S. Hunnicutt against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

The defendant in error, R. S. Hunnicutt, brought this suit in trespass to try title against the plaintiff in error, the San Antonio & Aransas Pass Railway Company, for 188 acres of land situated in Falls county, and $500 damages. Defendant below filed a general demurrer and general denial, and specially answered that it is a private corporation incorporated by and under the laws of the state as a railway company, whose line of railroad runs through the town of Lott, in Falls county, and through other counties; that its line of railroad runs about 1,050 feet through the land sued for, and owned by plaintiff below, and said line 100 feet in width is necessary for the operation of its business (that is, 50 feet on each side of its track); that the railroad now occupies the land; that it went into possession of the land about the ____ day of December, 1889, and built its railway thereon, under a claim of right, and by virtue of a deed recorded in the deed records of the county; that at the time it took possession of the land and constructed its roadbed, and laid its track thereon, the plaintiff knew it, and made no objection thereto, and acquiesced therein, and at no time complained thereof to defendant; that it has tried to agree with plaintiff upon a price for the strip of land occupied, 2½ acres of land, but that plaintiff and defendant cannot agree; that defendant is ready to pay plaintiff the market value of the strip of land, and has offered to pay him the cash, but plaintiff refuses to accept any sum, or put any price on the land sought to be condemned. Wherefore it prays that the strip of land be condemned for the purpose of operating its business, and other relief in equity. Plaintiff filed exceptions to the pleading asking a condemnation of the land, and specially excepted to the plea of tender because it shows no amount tendered, nor does it show the market value of the land. Plaintiff answered by general denial, and alleged that, if the land be condemned, the market value of the same is $1,250, for which he prays judgment, if the same be condemned. The facts are as follows: The state patented the land described in plaintiff's petition December 29, 1890, by patent which was duly recorded in the record of deeds of Falls county on the 17th day of January, 1891. The strip occupied by the railroad, and sought to be condemned, runs through the land patented to the plaintiff, Hunnicutt. The Texas Town-Site Company executed to defendant railway company a warranty deed the 31st day of October, 1891, duly acknowledged same day, and filed for record the 6th day of February, 1893, and duly recorded in Falls county March 3, 1893, conveying to the railway company about 10 acres of land; being a strip of land 150 feet on each side of the railway, through the entire tract sued for by plaintiff, and described in his petition. Plaintiff read in evidence the original petition in cause No. 2,704 in the district court of Falls county, styled "The Texas Town-Site Company vs. R. S. Hunnicutt," filed June 4, 1891, wherein the plaintiff in that suit sued defendant for the tract of land described in the original petition in this suit, and the judgment in that cause, of date January 17, 1894, adjudging all of the land to defendant in that suit and the plaintiff in this suit, and awarding a writ of possession therefor, together with the mandate of the court of civil appeals affirming said judgment. The testimony was conflicting as to the market value of the 2½ acres of plaintiff's land taken for railroad purposes by the defendant, ranging from $25 to $300 per acre. The testimony supported the verdict. There was a trial by jury, and under charge of the court, a verdict, to wit: "We, the jury, find for plaintiff the land in controversy; also, that defendant is entitled to have the land described in cross bill condemned for right of way purposes for the use of defendant railway company; also, find for plaintiff the sum of $500, the market value of land in controversy." Judgment was rendered for plaintiff for the land described in his petition, except the 1,050 feet thereof in length, by 100 feet, through the same (that is, 50 feet on each side of defendant's railroad track, the length of the road through plaintiff's land), which strip was condemned in favor of defendant for right of way purposes; and for plaintiff, Hunnicutt, against defendant railway company, for $500, the market value of the condemned...