Wichita Falls & W. Ry. Co. of Texas v. Wyrick

• Decision Date: 07 June 1913
• Parties: WICHITA FALLS & W. RY. CO. OF TEXAS v. WYRICK.
• Court: Texas Court of Appeals

Page 570

158 S.W. 570

WICHITA FALLS & W. RY. CO. OF TEXAS v. WYRICK.

Court of Civil Appeals of Texas. Amarillo.

June 7, 1913.

Appeal from Collingsworth County Court; Marion Reynolds, Special Judge.

Condemnation proceedings by the Wichita Falls & Wellington Railway Company of Texas against Jim Wyrick. From a decree awarding damages, petitioner appeals. Reversed and remanded.

R. H. Templeton and C. C. Small, both of Wellington, for appellant. J. L. Lackey, of Wellington, for appellee.

HUFF, C. J.

This is an appeal by the Wichita Falls & Wellington Railway Company from a judgment rendered against it in favor of the appellee, Jim Wyrick, for the sum of $700, from the county court of Collingsworth county. Appellant filed its application for commissioners before the county judge of Collingsworth county, to condemn a 100-foot strip of land out of the S. W. 1/4 of section 65, block 10, H. & G. N. Ry. Co. survey, in said county, particularly describing said strip by metes and bounds and alleged the same as belonging to Wyrick. The county judge, on such application, appointed commissioners, who assessed damages against appellant in the sum of $400. The appellee made protest, and filed the same as required by law. The issue as to damages was tried in the county court, and resulted in a judgment against appellant. This is a second appeal; the former appeal is reported in 147 S. W. 730. There are several assignments of error raising the question as to the sufficiency of appellee's allegations for damages. In the protest filed by appellee he referred to the report of the commissioners, and alleged that the amount allowed "is grossly inadequate for his damages, and ought not, and should not, be made the judgment of this court; and, if it should be made the judgment of this court, it would be a great injustice to this petitioner, and not half as much as he is actually damaged by reason of said railroad running across his land, owing to the peculiar way it runs through the land, making him two fields and two pastures, and running so close to his residence and barn lot." He prays for judgment upon final hearing for the sum of $1,000.

The appellant, in its demand for commissioners, alleged all the necessary prerequisites to the right of condemnation, the ownership of the land, the particular land sought to be condemned out of the quarter section, and stated that it and Wyrick failed to agree "upon the amount of damages to said quarter section of land by reason of said right of way being located on said land," and prays for the appointment of three disinterested freeholders, "who shall assess the amount of said damages." The court appointed the commissioners to assess the damages. The jury of commissioners assessed the damages, "which will be sustained by Jim Wyrick, because of such condemnation," at $400. If we correctly understand appellant, it is contended that the damages to the remainder of the quarter section, other than that actually occupied by the right of way, is special damages, and therefore must be specifically alleged. The statute does not so treat the damages to the remaining portion of the land, but such damages are treated as the direct and proximate result of placing a railroad across the land, and further prescribes what can and what cannot be recovered as damages. The statutes fix the measure of damages; and, when appellant alleged the failure to agree with Wyrick on the damages to his quarter section, and requested the appointment of commissioners to assess the same, it in effect alleged the damages which the law would give.

It was not necessary for appellee to allege the specific damages sustained; the law fixed his damages, rather the measure of his damages, and the things for which he could recover. Railway Co. v. Day, 3 Tex. Civ. App. 353, 22 S. W. 538; Railway Co. v. True...