St. Louis, A. & T. Ry. Co. v. Henderson

• Decision Date: 21 December 1893
• Citation: 24 S.W. 381
• Parties: ST. LOUIS, A. & T. RY. CO. v. HENDERSON.
• Court: Texas Supreme Court

24 S.W. 381

ST. LOUIS, A. & T. RY. CO. v. HENDERSON.

Supreme Court of Texas.

December 21, 1893.

Error from court of civil appeals, second supreme judicial district.

Action by W. C. Henderson against the St. Louis, Arkansas & Texas Railway Company for damages caused by defendant's taking of plaintiff's land for the construction of its railroad. From a judgment of the court of civil appeals, affirming a judgment of the district court for plaintiff, defendant brings error. Reversed.

Perkins, Gilbert & Perkins, Newton H. Lassiter, and Sam H. West, for plaintiff in error. J. Y. Hogsett, for defendant in error.

BROWN, J.

Henderson sued the railroad company in the district court of Tarrant county to recover damages caused by defendant's taking his land for the construction of its railroad, and for damages occasioned by the manner of its construction, setting up many grounds of damage. Judgment was given in the district court for the plaintiff, from which the defendant appealed, and the judgment was, by the court of civil appeals, affirmed. The court of civil appeals filed the following conclusions of fact: "Appellant, through its right of way agent, and appellee, entered into a verbal agreement for the purchase on the part of the appellant of the right of way for its railroad across appellee's land; but they were unable to agree upon the amount of compensation to be paid for this right of way, which resulted in the submission of this question to the decision of three arbitrators, who fixed the amount of the damages at $2,250. A deed was signed and acknowledged by appellee, but whether it was delivered to appellant was one of the controverted issues. The damages were assessed by the arbitrators, and the deed executed by appellee, upon certain representations made by appellant as to the alignment and grade of the railroad to be constructed and the manner of its proposed construction. After the money awarded by the arbitrators had been paid to the appellee, but before the deed had passed beyond his control, upon discovering that the alignment and the grade of the road had been changed to his detriment, and that it was not being constructed as represented and contemplated when the damages were assessed and the deed executed, he brought this suit to recover the full amount of the damages resulting to him from the taking of the land, and from the incidental injury to the land not taken, growing out of the manner and extent of the actual taking of the land and the construction of the road, the railroad as actually constructed taking more land than was originally contemplated, imposing additional burdens on the land not taken, and depriving appellee of certain privileges in the way of farm crossings promised and specified in the aforesaid deed. Appellee admitted, as a credit on the total amount claimed, the $2,250 awarded by the arbitrators, but alleged misrepresentations and fraud in the previous transactions, and sought to avoid the effect of the deed and award of the arbitrators." Plaintiff in error filed, in the court of civil appeals, a motion for rehearing, setting up the grounds urged by it in this court, which motion the court of civil appeals overruled. Plaintiff in error presents to this court, in substance, the proposition that the court of civil appeals erred in not reversing the judgment as to the lien foreclosed on its railroad, for three reasons: (1) That the petition did not pray for a lien; (2) that the facts did not authorize the foreclosing of a lien upon its road; (3) that the verdict of the jury did not find any lien for the plaintiff.

We think that the prayer of the petition was sufficient to justify the foreclosure of the lien if the case before the court showed that the plaintiff was entitled to such judgment. The facts found by the court of civil appeals show that, for some of the damages claimed, the plaintiff would be entitled to a lien, and for some that might have been found by the jury there would be no lien. In connection with the third ground, we will discuss this question more fully. When the issues submitted to a jury embrace only such claim or claims as by law are given a lien upon property, it is not necessary to submit the question of lien to the jury, because, in finding that the plaintiff is entitled to recover on such claim or claims for any amount, the jury determines that a lien exists, which will be declared by the court as a matter of law, and upon a general verdict a decree of foreclosure should be entered by the court. Day v. Cross, 59 Tex. 608; Pearce v. Bell, 21 Tex. 691; Jones v. Ford, 60 Tex. 131; Railway Co. v. James, 73 Tex. 18, 10 S. W. 744. In such case, if the court were to submit to the jury the question as to the existence of lien, it would necessarily be in the form of an instruction to the effect that, if they found the plaintiff entitled to recover, they would find a lien for the amount so found on the property in question, which would be the declaration of the court that a lien attaches to such claim by law, and the jury would not exercise any discretion upon the subject submitted. It would simply be the declaration of the law by the court before verdict, instead of upon the verdict. If, however, more than one issue be submitted, involving several different claims upon which recovery is sought, and upon one or more no lien would attach by law, and none exists by undisputed contract, if the jury return a general verdict, the court cannot declare a lien upon such verdict, for it is not certain that the amount found to be due is upon a claim entitled by law to a lien. In order to determine whether or no the court committed error in foreclosing a lien upon the land, we must ascertain upon what character of claims the recovery was sought, and upon which of these the charge of the court authorized the jury to find a verdict. For the purpose of ascertaining the issues submitted, we must look to the record of the case, and will examine the petition and answer with that point in view, not passing upon them in any other respect.

The case was tried upon the plaintiff's third amended original petition, which is full in its allegation, containing all the facts alleged in the former pleadings by plaintiff. The petition is framed upon different and contradictory theories, as it appears to us. It sets up the agreement to sell to the railroad company, the arbitration, payment of the award by the railroad company to plaintiff, and signing and acknowledging of a deed by plaintiff, and then the withholding of the deed from plaintiff to defendant because the railroad company had violated the contract of sale; charges the deed and award to be void for fraud; and, retaining the money paid, seeks to recover damages, as if no deed or award had been made, treating the case as if defendant had taken possession of the land without the consent of the plaintiff. Another theory upon which the petition seems to be framed is that the deed is valid, but the award is void for fraud, and plaintiff is entitled to recover as if no award had been made, including the right to recover upon the conditions of the deed for building crossings. If the deed and the award be binding, then plaintiff seeks to recover damages for the failure to put in the crossings, and for land occupied which was not...