Texas & N. O. R. Co. v. Orange & N. W. R. Co.

• Decision Date: 24 April 1902
• Citation: 68 S.W. 801
• Parties: TEXAS & N. O. R. CO. v. ORANGE & N. W. R. CO.
• Court: Texas Court of Appeals

68 S.W. 801

TEXAS & N. O. R. CO. v. ORANGE & N. W. R. CO.

Court of Civil Appeals of Texas.

April 24, 1902.

Appeal from Orange county court; Geo. F. Poole, Judge.

Action by the Orange & Northwestern Railroad Company against the Texas & New Orleans Railroad Company. From a judgment condemning a right of way, defendant appeals, and asks for injunction pending appeal. Denied.

Watts, Chester & Ellison, for appellant. Holland & Holland, for appellee.

GARRETT, C. J.

The appellant has applied to this court for an injunction to restrain the appellee, pending appeal, from entering upon and taking possession of a part of the roadbed and right of way of the appellant, sought to be condemned by the appellee for a crossing of its railroad over that of the appellant. Proceedings were regularly instituted by the appellee to condemn the crossing, and to an award of the commissioners assessing its damages at $1 the appellant objected, and carried the case to the county court, where judgment was rendered condemning the crossing, without damages. The appellant gave a supersedeas bond for appeal, and contends that the judgment of the county court is superseded by the bond pending appeal to this court. The appellee, however, has deposited double the amount awarded by the commissioners, and paid the costs, and executed a bond for the payment of further costs, and is proceeding to take possession of the property. This, the appellee claims, was authorized by the act of April 15, 1899 (Gen. Laws, p. 105). But it is contended by the appellant that the act cannot apply where no damages were awarded, and that its property cannot be taken without compensation. While the appellant may be entitled to at least nominal damages for the property taken, the failure to award such would be an error to be corrected on appeal; and pending that the appellee would have the right to take possession of the property upon compliance with the terms of the statute, although no damages were awarded. Such being the case, the judgment is not superseded by the appeal bond, and this court has no right to interfere with the possession of the appellee pending the appeal. The question of the right to condemn the property cannot arise on this application, and if, as a condition precedent to condemnation, it should be necessary to apply to the railroad commission for its determination as to the manner of crossing under the act of April 15, 1901 (Gen. Laws, p. 255), that would still not authorize the...