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

• Decision Date: 22 January 1941
• Docket Number: No. 7567.,7567.
• Citation: Texas & N. O. R. Co. v. Schoenfeld, 146 S.W.2d 724, 136 Tex. 173 (Tex. 1941)
• Court: Texas Supreme Court
• Parties: TEXAS & N. O. R. CO. v. SCHOENFELD et al.

146 S.W.2d 724

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

No. 7567.

Supreme Court of Texas.

January 22, 1941.

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

Suit by Mrs. Nellie Gillett Schoenfeld and her husband against the Texas & New Orleans Railroad Company, to recover damages allegedly sustained by the removal of a spur track. A judgment for plaintiffs was affirmed by the Court of Civil Appeals, 124 S.W.2d 910, and defendant brings error.

Judgments reversed and judgment directed.

Baker, Botts, Andrews & Wharton, of Houston, and Brooks, Napier, Brown &

Matthews and Harper McFarlane, all of San Antonio, for plaintiff in error.

Ingrum & Morris, of San Antonio, for defendants in error.

SHARP, Justice.

Mrs. Nellie G. Schoenfeld, joined by her husband, Charles M. Schoenfeld, filed this suit against the Texas & New Orleans Railroad Company to recover damages alleged to have been sustained by virtue of the removal by the Railroad Company of its spur track which had been situated on a tract of land owned by Mrs. Schoenfeld. The case was tried before the court without the aid of a jury, and the trial court entered judgment in favor of Mrs. Schoenfeld, and against the Texas & New Orleans Railroad Company, for the sum of $2,203.12; from which judgment the Railroad Company appealed to the Court of Civil Appeals at San Antonio, and the judgment of the trial court was affirmed. 124 S.W.2d 910.

A portion of the spur track involved in this suit was originally built by the San Antonio & Aransas Pass Railway Company in the year 1907, for the purpose of serving lime kilns constructed on land which in 1919 Charles M. Schoenfeld purchased with the view of establishing a rock quarry. Charles M. Schoenfeld purchased the 60 acres of land, on which the spur track was located, in 1919, for the sum of $6,000. Schoenfeld shipped out many carloads of rock. In 1924 he entered into a contract for an extension of the spur. In December, 1931, Schoenfeld sold and conveyed the tract of land to his wife, Mrs. Nellie G. Schoenfeld. In 1936 the Texas & New Orleans Railroad Company, being the successor in title to all the property theretofore belonging to the San Antonio & Aransas Pass Railway Company, entered upon the 60 acres and took up the ties, etc., out of which the spur track had been built, and removed same from the premises.

The trial judge made extensive findings of fact, which are copied in the opinion of the Court of Civil Appeals. Without copying such findings in this opinion, we refer to the opinion of the Court of Civil Appeals for such findings. We shall state the substance of such findings in this opinion which are pertinent to the questions considered and discussed. The trial court found:

(a) That at the time Charles M. Schoenfeld entered into possession of the 60 acres of land there was situated upon the 60 acres of land a spur railroad track, approximately 651 feet in length from the switch point on the San Antonio & Aransas Pass Railway, Kerrville Division Main Line, to the terminus of such spur on said 60 acres of land, of which spur 213 feet were on the railroad right of way and 438 feet at that time, October 14, 1919, were on said 60 acres.

(b) That on September 14, 1936, the Texas & New Orleans Railroad Company removed 838 feet of track; approximately 213 feet being on the right of way and the remaining 625 feet being on the 60 acres of land owned by Schoenfeld.

(c) The court further found that Charles M. Schoenfeld owned no railroad cars or locomotives, except some narrow-gauge equipment, which would not be susceptible of use on the spur track involved in this controversy; and that the cars and locomotives operated on the spur track were operated by the Texas & New Orleans Railroad Company.

(d) The court found that a section of said spur track involved was originally constructed in 1907 by the San Antonio & Aransas Pass Railway Company, and that said Company constructed an addition of 60 feet to the spur track in 1908; and in 1914 a second extension, of 90 feet, was added to the track of the San Antonio & Aransas Pass Railway Company.

(e) The trial court concluded that the spur track involved in the controversy was not at any time, and never became, a permanent fixture and a part of the realty, and that, therefore, the said Charles M. Schoenfeld did not acquire title to said spur track upon purchase of the real estate in 1919, and that, therefore, Mrs. Nellie G. Schoenfeld did not acquire title to such spur upon her purchase from Charles M. Schoenfeld in 1931.

The Railroad Company contends that the Court of Civil Appeals erred in holding that a railroad company in Texas does not have the power of eminent domain to condemn property for a right of way to reach a lime kiln or rock quarry on private property. As we interpret the opinion, it is held that, under the facts existing in this case, the Railroad Company could not exercise the right of eminent domain. It is not questioned that the Railroad Company is legally incorporated under the law. Its right to condemn property for a right of way necessarily follows. That the Railroad Company has the power, under the law, if necessary, to condemn property like that in controversy, is now, we think, clearly established. See Articles 6316a, 6319, 6336, 6351, 6509, and 6550, Revised Civil Statutes of 1925; West v. Whitehead, Tex.Civ.App., 238 S. W. 976, writ of error refused; Buffalo Bayou, B. & C. Railway Co. v. Ferris, 26 Tex. 588, 598; Croley v. St. Louis Railway Co., Tex.Civ.App., 56 S.W. 615; Kansas & T. Coal Railway Co. v. Northwestern Coal Co., 161 Mo. 288, 61 S.W. 684, 51 L.R.A. 936, 84 Am.St.Rep. 717; Railroad Co. v. Newton, 133 N.C. 132, 136, 45 S.E. 549; Butte, A. & P. Railway Co. v. Montana U. Railway Co., 16 Mont. 504, 41 P. 232, 31 L.R.A. 298, 50 Am.St.Rep. 508; Ulmer v. Lime Rock Ry. Co., 98 Me. 579, 57 A. 1001, 66 L.R.A. 387; Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205, 46 P. 790, 34 L.R.A. 368, 60 Am.St.Rep. 818. This contention is sustained.

The Railroad Company further contends:

(1) That the Court of Civil Appeals erred in holding that where a railroad constructs a spur track to connect its main line with a lime kiln or rock quarry, the material in that portion of such spur, constructed upon land not belonging to the railroad, constituted a portion of the underlying real estate, so that title to said material would pass under a deed to the underlying real estate.

(2) That the Court of Civil Appeals erred, as a matter of law, in failing and refusing to reverse the conclusion of the trial court that on December 14, 1931, Charles M. Schoenfeld had acquired title by adverse possession to the 438 feet of spur track that was constructed before October, 1919.

The opinion of the Court of Civil Appeals overruled and reversed the conclusion of the trial court, which held that the material in the track in controversy was not a permanent fixture, and did not become a part of the real estate; so that title to such material did not pass by virtue of the delivery of a deed to the underlying real estate.

The evidence disclosed that the only use made of said track was by the locomotives and cars of the Texas & New Orleans Railroad Company and the San Antonio & Aransas Pass Railway Company, operated by employees of such railroads; and hence no use of the spur track hostile to the Railroad Company was shown.

It is necessary, as a matter of law, in order to acquire title to personal property by adverse possession, that such property be in the possession of the party claiming title for the required time; that such property be used by the...