Texas Midland R. R. v. Southwestern Telegraph & Telephone Co.

• Decision Date: 23 June 1900
• Parties: TEXAS MIDLAND R. R. v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.
• Court: Texas Court of Appeals

58 S.W. 152

TEXAS MIDLAND R. R. v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.

Court of Civil Appeals of Texas.

June 23, 1900.

Appeal from district court, Hunt county; Howard Templeton, Judge.

Suit by the Texas Midland Railroad for an injunction against the Southwestern Telegraph & Telephone Company. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

Dashiell & Crumbaugh, for appellant. McLaurin & Wozencraft, for appellee.

BOOKHOUT, J.

This suit was instituted on the 12th day of August, 1898, in the district court of Hunt county, by the Texas Midland Railroad against the Southwestern Telegraph & Telephone Company, to enjoin and restrain said company from erecting and constructing a telegraph and telephone line on the right of way of said railroad. The defendant filed its answer on September 11, 1899, and on November 15, 1899, a trial was had, and a judgment rendered by the court denying to plaintiff the injunction as prayed for. From this judgment plaintiff has duly prosecuted this appeal.

The record shows that the telephone company presented its petition to the county judge of Hunt county, seeking to have condemned a right of way for the erection and operation of a telegraph and telephone line in Hunt county by the petitioner over the property of defendant. Commissioners were appointed, and they, after notice and hearing, made their award, which was duly filed with said county judge on the 8th day of August, 1898. The railroad company filed exceptions to this award, and appealed to the county court, and said proceedings were still pending at the time of the trial herein. On September 11, 1899, the telephone company, acting under the act of the 26th legislature approved April 15, 1899 (Gen. Laws 1899, p. 105), made a deposit in money in said county court of the amount of said award, subject to the order of said railroad, and also paid all the costs in said condemnation proceedings, and further deposited in money a sum equal to the amount of damages awarded by said commissioners. Said company executed a bond in said condemnation proceedings, with two good and solvent sureties, approved by the county judge, conditioned as required by said statute. The telephone company seems to have complied with the requirements of this act authorizing it to enter into possession of the property condemned.

The sole question presented by this appeal is, was the appellee entitled to the remedy provided by this statute? As the law stood prior to the enactment of this statute, the plaintiff in condemnation proceedings was not entitled to take possession of the property condemned until there had been a final determination of the proceedings in condemnation. See article 4471, Rev. St. By the terms of the act of the 26th legislature, the plaintiff in condemnation proceedings is authorized to take possession of the property pending litigation after the award of the commissioners, upon certain conditions: First, it shall pay to the defendant, or deposit in...