Saner-Whiteman Lumber Co. v. Texas & N. O. Ry. Co.

• Decision Date: 17 November 1926
• Docket Number: (No. 683-4589.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: SANER-WHITEMAN LUMBER CO. v. TEXAS & N. O. RY. CO.
• Court: Texas Supreme Court

Page 127

288 S.W. 127

SANER-WHITEMAN LUMBER CO. v. TEXAS & N. O. RY. CO.

(No. 683-4589.)^*

Commission of Appeals of Texas, Section B.

November 17, 1926.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by the Texas & New Orleans Railway Company against the Saner-Whiteman Lumber Company and another. Judgment for plaintiff, and defendant named appealed to the Court of Civil Appeals. Judgment affirmed (see 282 S. W. 267), and defendant named brings error. Reversed and remanded for new trial.

Saner, Saner, Turner & Rodgers, of Dallas, Gill, Jones & Tyler, of Houston, and Chas. L. Black, of Austin, for plaintiff in error.

Baker, Botts, Parker & Garwood and Garrison & Watson, all of Houston, for defendant in error.

POWELL, P. J.

On June 1, 1905, defendant in error executed a written contract with the predecessor of plaintiff in error, under which the former leased the latter 15 miles of steel rails for a rental of $100 per mile per annum. It was agreed at the termination of the contract, as found by the trial court:

"That said contract was to continue for a period of 15 years beginning June 1, 1905, unless sooner terminated, and, should said lumber company's supply of timber be exhausted before the expiration of said period, it should have the right to terminate said contract after the expiration of 5 years by giving 30-days' notice of its intention to do so, and that thereupon it became the duty of said lumber company to take up said rails and deliver same to the railroad company at said station of Caro, in the same condition, ordinary wear and tear excepted, that they were in when delivered to said lumber company; that if said lumber company should fail or refuse, after a period of 30 days after demand to them by said railroad company then the said railroad company should have the right to take up said rails and transport them to said station of Caro, and charge the reasonable expense thereof to said lumber company."

The lumber company notified the railway company that it would not use the rails after a certain time. Then, in September or October, 1917, the lessor demanded of the lessee a return of the rails, but the return thereof was refused by the lumber company. The trial court found, as a fact, that the lumber company's refusal to return the rails was due to its conclusion that it could not do so since it had placed the same in the roadbed of a common carrier in this state. The trial court found that this refusal to return the rails, after they had been turned over to a common carrier by the lessee, was a conversion thereof by the lumber company. So finding, the trial court awarded the defendant in error a judgment for the value of the rails so converted. This value was fixed by the trial court at $39,981.99.

Upon appeal to the Court of Civil Appeals, the judgment of the district court was affirmed in a very clear and able opinion by Chief Justice Pleasants. He states the case fully. See 282 S. W. 267.

The writ of error in this case was granted "by reason of the second proposition under the second error assigned." That proposition was as follows:

"Where a party seeks two inconsistent remedies, only one may be granted, and it is incumbent upon the party to elect as between the two, and he is bound by the election. In this case, the appellee elected to sue primarily for the title and possession of the rails and pleaded and proved a good cause of action to recover the title and possession, and, therefore, under the law and under its pleadings, cannot have judgment for the value of the rails."

It seems clear, from the record, that the defendant in error was convinced that the rails could not be returned because they had been placed in the roadbed of a common carrier in this state by the lumber company. The lumber company, so the trial court found, gave that as its excuse for not returning the rails. Under the pleadings of the lumber company, in the case at bar, its views upon its having authority to return the rails are not very clear. It pleaded several defenses upon the theory that the railway company was correct in its view that the rails could not be returned. The trial court overruled these defenses and held that the rails could not be removed. Against this finding the lumber company complained, in due course, in its twentieth assignment of error in the trial court, reading as follows:

"The court erred in holding that the plaintiff was unable to take up the steel from the roadbed of the Caro Northern Railroad Company."

In its brief in the Court of Civil Appeals, this assignment was carried forward by the plaintiff in error. And its eleventh proposition in said brief reads as follows:

"There is nothing in the Constitution or statutes or the laws of this state to prevent the railroad company from removing its rails now in the tracks of the Caro Northern Railway Company."

The Court of Civil Appeals sustained this last contention of plaintiff in error and held that the rails could be removed. In this holding they seem to be correct, without question. In the first place, the rails were only leased to the lumber company. The common carrier must, at least, own its rails before, under any theory, it could be said that the rails could not be removed. The owner of the rails has a right to them, if claimed before they are lost by limitation. This is well settled by the Court of Civil Appeals at Galveston in the case of Railway Company v. Kinkead, 60 S. W. 468 (writ of error denied). Again, even where the rails are owned by a common carrier, they may be removed where it is unprofitable to operate the road. See Railway Commission of Texas v. Eastern Texas Railway Company, 264 U. S. 79, 44 S. Ct. 247, 68 L. Ed. 569. Since the Court of Civil Appeals held that the rails could be removed, it is contended by plaintiff in error here that it should have rendered judgment awarding the rails to defendant in error, and that it had no authority, under the pleadings in this case, to affirm the judgment of the trial court, which had allowed the lessor to recover the value of the rails.

It becomes important, at this point, to see just what the prayer of the defendant in error was. In its original petition, it prayed as follows:

"Wherefore, premises considered, plaintiff prays that each of the defendants be cited to answer this petition, and that, upon final hearing, it have judgment against the defendant, Saner-Whiteman Lumber Company for the sum of $3,400 as rental due, and for the additional sum of $5,000, or such other amount as the facts may show to be adequate to cover the expenses of regaining possession of said rail; that it have judgment for the title and possession of said rail, and in the alternative, in case the court should hold that, by reason of any facts or circumstances or rule of law, said rail cannot be delivered to it, that it have judgment against said defendants Saner-Whiteman Lumber Company and Caro Northern Railway Company as for conversion of said rail, and for the value thereof, as may be developed on the trial of said case, and that it have its writ of sequestration, as per affidavit and bond filed herewith, and for such other relief to which it may be entitled in law or equity."

In its first amended original petition, defendant in error prayed as follows:

"Premises considered, plaintiff prays: (a) That it be decreed to be the owner of the title and of the right to the possession of said rails. (b) That it have and...