Texas & P. Ry. Co. v. Scott

• Decision Date: 01 December 1896
• Docket Number: 483.
• Citation: 77 F. 726
• Parties: TEXAS & P. RY. CO. v. SCOTT.
• Court: U.S. Court of Appeals — Fifth Circuit

77 F. 726

TEXAS & P. RY. CO. v. SCOTT.

No. 483.

United States Court of Appeals, Fifth Circuit.

December 1, 1896

T. J Freeman and F. H. Prendergast, for plaintiff in error.

W. C Lane and S. R. Jones, for defendant in error.

Before McCORMICK, Circuit Judge, and NEWMAN and PARLANGE, District judges.

NEWMAN District Judge.

The facts of this case, as gathered from the record, are as follows: In 1856, W. T. Scott, Sr., was the owner of a considerable tract of land on the line of the then contemplated Southern Pacific Railway Company. Scott made a verbal contract with the railway company, by which he gave to the company the right to use a strip 100 feet wide, over his land, for a right of way, if the company would establish a depot at a point on said land now known as 'Scottsville,' and would further give said 'scott and his family free transportation over the road. W. T Scott, Sr., was a director of the Southern Pacific Railway Company at the time the agreement was made. The railroad was in the year named, built on Scott's land, in accordance with the agreement, and the depot was established at Scottsville. In 1873 the Southern Pacific Railway Company was consolidated with the Texas & Pacific Railway Company, and it seems that by this consolidation the Texas & Pacific Railway Company acquired the rights and assumed the liabilities of the Southern Pacific Railway Company. Since the consolidation in 1873, the road has been controlled and operated by the Texas & Pacific Railway Company. In 1892 the station agent at Scottsville and the telegraph operator were removed. No reason is shown in the record for their removal, but it was presumably because, in the opinion of those controlling the company, it was not to its interest longer to keep the agent and the telegraph operator at Scottsville. At the time of this change, in 1892, W. T. Scott, Sr., was dead, and the title to the tracts of land through which the Southern Pacific Railway (now the Texas & Pacific Railway) had been constructed was in R. R. Scott. In January, 1893, R. R. Scott brought suit in the district court of Harrison county, Tex., which was subsequently removed into the circuit court of the United States. This suit seems to have been for damages for breach of contract caused by the removal of the station agent and the operator at Scottsville, and which, it is claimed, practically amounted to a discontinuance of the station.

There was a demurrer to the plaintiff's petition, as follows:

(1) 'Because said petition shows on its face that it is a suit on a contract made in 1856, verbally, and not in writing, which was more than thirty-six years before this suit was filed, and therefore said suit is barred by the law of limitation of two years; and said suit is also barred by the limitation of ten years.'

(2) 'Because said petition shows that said contract was for the sale of real estate, and was not in writing, and was therefore contrary to the statute of frauds, and was therefore void.'

(3) 'Because said contract was verbal, and not in writing, and was not to be performed in the space of one year from the making thereof, and was therefore contrary to the statute of frauds.'

(4) 'Because the defendants and those under whom they claim have been in actual adverse possession of said right of way, as shown by the plaintiff's petition, for thirty-six years, wherefore plaintiff's right to recover the land is barred by the law of limitation of ten years.'

The demurrer setting up the defense that the contract sued on was void, because contrary to the statute of frauds, in that it was not to be performed within one year, was sustained by the court. The demurrer to the first petition in the circuit court and to the supplemental petition, on the ground that the plaintiff showed no right to recover the right of way, was overruled, and it was held that the plaintiff could recover the value of the right of way occupied by the defendant company on the land described. Subsequently, there was a jury trial, which resulted in a verdict for the plaintiff for the value of the right of way, and, perhaps, for certain damages to the remainder of the land not offset by peculiar benefits to the land resulting from the construction of the railroad. The amount of the verdict was $2,700, with interest from April 1, 1892. On objection of defendant that the verdict was excessive, the court ordered that a remittitur be entered, and judgment be rendered for $1,916, with interest thereon from April 1, 1892, at 6 per cent. per annum, making in all $2,318.26.

The defendant, in the proper time, excepted to certain portions of the charge to the court, and to refusals to charge.

Among the requests refused were the following:

'The jury are charged that in this case the plaintiff cannot recover, because the evidence shows that the defendant company has substantially complied with the contract set out in plaintiff's petition, by keeping the station at Scottsville fully equipped from 1856 up to April, 1892. The jury are charged that the plaintiff in this case cannot recover, because the cause of action is barred by limitation.'

'That the contract sued on, as having been made between W. T. Scott, Sr., and the railway company, did not constitute such a contract as ran with land, or created any charge on the land, described in plaintiff's petition, and would not pass to the plaintiff by is acquiring title to the land; but, if any cause of action accrued to any person by a breach of said contract, it would be a suit for damages for breach of said contract.'

The other exceptions to the charge as given, and to the refusals to charge, need not be referred to, as the case is presented here. It will be perceived, therefore, that the court held that the contract between W. T. Scott, Sr., and the railway company for a right of way, in consideration of the establishment of the station and free transportation for Scott and his family, was void; and it was further held that the abandonment of the station in 1892 gave to the then owners of the Scott land the right to recover the value of the right of way, and incidental damages to the remainder of the tract. There is some doubt as to whether this is a suit by R. R. Scott, as purchaser of the land, and certain interveners, children and grandchildren of W. T. Scott, Sr., made parties merely for convenience, and to avoid difficulty in showing title, or a suit by the heirs of W. T. Scott, Sr. The view we take of the case, however, renders a determination of this question unnecessary.

The case presents itself here in a double aspect: First. If the contract between W. T. Scott, Sr., and the railway company is void, has the company obtained the right to an easement over and upon the land by possession and use? Second. If the contract between W. T. Scott, Sr., and the railway company was valid, has it been complied with by the company? The contention for the plaintiff below (defendant in error here) is that the possession of the company of its right of way was a mere license; that it was a tenancy under Scott; and that the establishment and continuance of the depot, and the allowance of free transportation, were in the nature of rent for the right of way; and, further, that the holding of the company was subordinate to, and in recognition of Scott's title, and not adverse to it. Is this true, or is the opposite contention true, that, under the facts, the company has, by open, peaceable, continuous, and adverse possession, acquired a full prescriptive right to the right of way over the lands? There is no doubt that if the contract between Scott, Sr., and the railway company, under which the company took possession of this land, was void, Scott's right of action to recover the land accrued immediately. There is no question but that the occupancy of the company was open, peaceable, continuous, and...