Texas & N. O. R. Co. v. Clevenger

• Citation: 223 S.W. 1036
• Decision Date: 06 April 1920
• Docket Number: (No. 577.)
• Parties: TEXAS & N. O. R. CO. et al. v. CLEVENGER.
• Court: Court of Appeals of Texas

223 S.W. 1036

TEXAS & N. O. R. CO. et al. v. CLEVENGER.

(No. 577.)

Court of Civil Appeals of Texas. Beaumont.

April 6, 1920.

Appeal from District Court, Nacogdoches County; L. D. Guim, Judge.

Action by J. P. Clevenger against Texas & New Orleans Railroad Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Arthur A. Seale, of Nacogdoches, and McMeans, Garrison & Pollard, of Houston, for appellants.

S. M. Adams, of Nacogdoches, for appellee.

WALKER, J.

This suit was filed by J. P. Clevenger against Texas & New Orleans Railroad Company and Walker D. Hines, as Director General of Railroads, judgment being rendered in his behalf against both defendants for the sum of $250. Omitting the formal allegations, plaintiff's petition in this cause is as follows:

"(2) And, further, plaintiff says that on the 28th day of July, 1919, the plaintiff was the owner and in possession of the foregoing [following] described personal property, to wit: [Here follows description of house.]

"(3) And, further, the plaintiff says, to wit, that on the 28th day of July, 1919, the defendants entered upon the premises where the house was situated, and there, without authority or permission from the plaintiff, tore down the said house, and without the knowledge of the plaintiff took possession of the same, to the plaintiff's damages, as aforesaid; that by the wrongful acts of the employés of the defendants the plaintiff has suffered damages in the sum of $750."

The Texas & New Orleans Railroad Company answered by pleading that this cause of action accrued after its lines were taken over by the federal government, and after the promulgation of General Orders Nos. 50 and 50a by the Director General, and by reason of these facts it denied that it was in any way liable to plaintiff.

Walker D. Hines, Director General, answered: That by contract dated the 1st day of January, 1906, the Texas & New Orleans Railroad Company leased to J. P. Clevenger a portion of its right of way at Clevenger, in Nacogdoches county, Tex., to be held by him on the following conditions:

"This lease shall continue in force so long as the lessee shall operate his sawmill at its present location; the lumber manufactured by said mill to be transported over the lines of the lessor; if, however, the said strip of land be required for railroad purposes, the lessor may terminate the lease by giving due notice to the lessee, allowing him a reasonable time in which to remove his improvements from said land and rearrange them conveniently."

That under this lease, Clevenger built the house described in his petition, and further pleading:

"And in this connection this defendant shows to the court that several years ago, the exact date of which is not known to this defendant, but is known to the plaintiff, the plaintiff's sawmill at its then location was burned, and plaintiff thereupon ceased to operate his sawmill at its then location, and that by reason thereof said lease expired; that thereafter seasonable demand was made upon the plaintiff to remove from the leased land said house or houses, which plaintiff failed to do, and thereafter, after allowing him reasonable time in which to remove his improvements from said land, and rearrange them conveniently, said house or houses were torn down, and the leased premises relieved of them as structures upon said leased premises; and in this connection defendant says further that, after the termination of the said lease as aforesaid, said plaintiff had no right to permit said houses to remain upon said leased premises, but was in duty bound to remove them at his own expense upon the termination of the lease, and upon proper demand being made upon him to do so, notwithstanding which the said houses were torn down at no cost or expense to this plaintiff, all of which has been a positive benefit to him, in view of the duty on his part to tear them down at his own expense."

Briefly stated, the facts are that on or about January 1, 1906, the lease as pleaded by the defendants was duly executed by the Texas & New Orleans Railroad Company and J. P. Clevenger; that he built the house described in his petition under the terms of this lease contract; that some six or seven years before the institution of this suit his sawmill was burned at Clevenger, and was not rebuilt by him; that he continued using the house from the time he built it until it was torn down by the agents, servants, and employés of the Director General; that some two or three weeks before the house was...