Craig v. Ft. Worth & D. C. Ry. Co.

DUNKLIN, J. In the year 1911 the Ft. Worth & Denver City Railway Company, the Wichita Valley Railway Company, the Wichita Falls & Oklahoma Railway Company, and the Missouri, Kansas & Texas Railway Company filed condemnation proceedings to subject for their use a strip of land 24.48 feet wide from east to west and 100 feet long from north to south situated in the city of Wichita Falls, Tex., lying south of Seventh street, and bounded on the north by the south line of said street, the St. Charles Hotel Building lying west of and adjacent to said strip, and the right of way of the Ft. Worth & Denver City Railway Company being adjacent to said strip on its east line. The purpose of said condemnation, as shown in the petition therefor, was as follows: “Your petitioners would represent and show to the court that it is necessary for said railway company to acquire the possession of said above-described property for the purpose of placing a brick sidewalk upon same to furnish ingress and egress to and from the Union De-" pot so to be constructed and now in the course of construction, and for the purpose of acquiring the ground upon which to lay one coach track and industrial track, and for' additional depot and station ground for said sidewalk as aforesaid.” Upon that petition a decree of condemnation was awarded in which the following appears: “It is further adjudged and decreed that the sum awarded by said commissioners herein as damages to the adjacent property belonging to said Mrs. Adeline Rucks and the other defendants is only for the construction and maintenance of the two railway tracks described in plaintiff’s original petition filed herein, which two tracks are described and to be located in said property taken, said tracks to be for one coach track and for one industrial track, said track to be laid on the eastern border and said industrial track to be located across said property between said coach track and the said St. Charles Hotel Building, the said property to be used also by said plaintiff as a brick walk thereon to furnish ingress and egress to the Union Depot, and that said sum does not compensate said defendants for any other damage for any other use of said property.” On February 2, 1915, John Craig and Lee Downs, lessees of the St. Charles Hotel Building, instituted the present suit to restrain the railway companies from maintaining an iron fence which had theretofore been erected about 8 feet high within 6 or 8 inches of the east wall of the hotel building, and running the entire length of said building, and for a mandatory injunction requiring the railway company to remove said fence, and for damages to their business by reason of the erection of said fence; and from a judgment in favor of the defendants, the plaintiffs have appealed. This case was before us on a former appeal and, our opinion then rendered appears in 176 S. W. 827. The case was tried by the court without the aid of a jury, and the trial judge filed findings of fact which included, among others, the facts recited above. Other findings by the court are as follows, omitting therefrom the unnecessary repetition of the expression “The court finds that,” with which nearly every paragraph of the findings begins, and so changing the language used as to state the findings in a narrative form, but without any other change: “II. Plaintiffs went into possession of the premises occupied by them on the 5th day of September, 1914, and have since continued to occupy same as a hotel, saloon, and restaurant. “III. Said restaurant was, and has since continued to be, a restaurant for negroes, while the saloon and hotel was principally for white people, with the negro trade in the rear portion of the saloon. * * * “VI. The defendant companies at the time they condemned said premises on which this fence is erected began to use the western portion of said premises, being the portion lying next to the plaintiff’s business, as a public thoroughfare from Seventh street, in the city of Wichita Falls, Tex., to the Union Depot, on Eighth street, in the city of Wichita Falls, Tex.,’ and in order to make same passable and usable the defendants erected both on Seventh street and Eighth street cement sloping driveways, and then filled said passway in with cinders from Seventh street to Eighth street, and at the point where said passway crossed the Blair-I-Iughes track the defendant companies erected the usual crossing by placing large, heavy boards between the rails and on each side of the rails. “VII. When the defendants herein condemned a tract of land 24.48 feet wide just east of the building occupied by plaintiffs, said property, in 1911, they erected and maintained a driveway between Seventh street and Eighth street and *946 scattered cinders throughout the distance from Seventh street to Eighth street for the purpose of filling- up the holes, and for the purposes of making a public passway between said streets and to the Union Depot in the city of Wichita Falls, Tex., and the defendants herein erected and maintained a crossing over the Blair-Hughes house track, and near the end of the premises now occupied by these plaintiffs, which has been used as a public crossing for three years prior to the time plaintiffs entered into possession of said premises. “VIII. These defendants have only put into use the southeast corner of the premises so condemned by these defendants by erecting the industrial track leading to the Blair-Hughes House, and the defendants so far have never used the remainder of said premises condemned by them in 1911 for the purposes set forth in the condemnation proceedings, except to erect and construct the industrial track which runs across the southeast corner of said premises, and by erecting and maintaining the passageway next to the building occupied by plaintiffs. “IX. The passageway erected and constructed and maintained by these defendants between Seventh street and Eighth street where the Union Depot in the city of Wichita Palls,'Tex., is located has been maintained by these defendants for the use of the public, both for vehicles and foot passengers, continuously, and said passageway lies along and next to the building occupied by these plaintiffs, and along which these defendants erected the fence as heretofore stated. “X. On September 5, 1914, and for throe years prior thereto, there had been maintained a passageway lying and being by the side of the brick building now occupied by these plaintiffs, “XI. These plaintiffs at the time they entered into said contract for the lease of said premises, and at the time they made the improvements on these premises, thought and believed that said passageway between Seventh street and Eighth street was a public thoroughfare and passageway. “XII. Plaintiffs relied upon said passageway being a public thoroughfare when they leased and improved said premises for the purpose of occupancy. “XIII. Plaintiffs cut one door in the side of said building at the time they opened same, about September 5, 1914. “XIV. Plaintiffs cut the second door in said premises, being the door in the rear of the saloon, about the 1st of November, 1914. “XV. The expense of cutting these doors was about $12.50 for each door. “XVI. The defendants and their agents at the time that plaintiffs entered into possession of said premises knew for what purpose they were using and intended to use said premises, and knew that these plaintiffs were expending money on these premises for the purpose of occupancy, and said nothing to these plaintiffs until after they had expended the sum of about $25 toward making openings leading on to this passageway from Seventh street to Eighth street, and which passway lay along and by the side of the building occupied by these plaintiffs, and which was extended from Seventh street to the Union Depot, on Eighth street, in the city of Wichita Falls, Tex. “XVII. About the morning of January 7 (before 9 o’clock a. m.), A. D. 1915, the defendant companies erected an iron fence about 8 feet high and within 6 or 8 inches of the premises occupied by these plaintiffs, the entire length of said building, and thereby completely blockaded the door leading into the restaurant in the rear part of the premises occupied by these plaintiffs and the rear door of said saloon so maintained on these premises occupied by these plaintiffs. “XVIII. This fence is erected and maintained by these defendants along the side of this passageway (from Seventh street to the Union Depot) and on the premises condemned by these' defendants in Hay, 1911. “XIX. At the time these defendants erected and maintained said fence on January 7, 1915, they knew for what purpose these plaintiffs were at that time using said building and using these openings and had been using said openings prior thereto. “XX. Neither the plaintiffs nor any one connected with the premises operated and controlled by these plaintiffs ever permitted or authorized the defendant companies to erect and maintain said fence, but did at the time resist, and have continued to resist, the maintenance of said fence by these defendant companies. “XXI. The erection and maintenance of this fence by these defendants on the property condemned by them in 1911 is an additional use of said property than that set forth in the condemnation decree. “XXII. There now exists in Wichita Falls, Tex., several other places where the defendants are operating their railways closer to saloons and restaurants and other businesses, and the defendants have never erected any fence or obstruction along their right of way obstructing the passage over said right of way of the defendants railway company from these other places;. “XXIII. A few times there were seen as many as three or four people standing together by the side of the doors opening on to this passageway during the period from September 5, 1914, to January 7, 1915, and sitting upon beer kegs around said door; occasionally passengers from the trains stopping at the Union Station occasionally walked across the tracks of defendants and entered the back door of said saloon. “XXIV. There is a distance between house track leading to Blair-Hughes and the door leading into the restaurant from the public passway of 17 feet and 4 inches. “XXV. There is a distance between house track leading to Blair-Hughes and the door leading from the rear portion of the saloon on to this public passageway of 21 feet. “XXVI. This industrial track is not used on an average more than four times a week. “XXVlI. For the purpose of operating this industrial track it is not necessary for the safe operation of same for the defendant railway companies to have and maintain the fence so erected by the defendant companies. “XXVÍII. It would not cost to. exceed $10 to remove the said fence so erected by these defendants. “XXIX. Since the erection of said fence by these defendants there is no other opening into said restaurant other than going through the saloon. “XXX. Since the erection of said fence there is no rear opening to the saloon in which these plaintiffs have been conducting their business. “XXXI. By reason of the erection and maintenance of this fence from the morning of January 7, 1915, to the night of June 29, 1915, same deprived these plaintiffs of the sale of goods in their saloon to such an extent that the net profits to the plaintiffs arising therefrom would be $710, and by reason of the erection and maintenance of this fence same deprived these plaintiffs up to June 30, 1915, of the rent received by them for the restaurant in the rear portion of said building to the amount of $90. “XXXII. If said fence had not been erected by these defendants, these plaintiffs would have by means of said restaurant being run, and by means of said doors being opened, have sold goods from said saloon to the extent that the net profits coming to these plaintiffs would have been between the morning of 7th of January, 1915, to the night of June 29, 1915, the sum of $710. If said fence had not been erected, plaintiffs would have been able to rent that portion of said building- used by said restaurant from January 7 to June 20, 1915, for $90 more than they were able to rent same.” *947 The following are the trial judge’s conclusions of law upon the facts so found: “In deference to the decision of the Court of Civil Appeals heretofore rendered in this cause, I conclude that the plaintiffs are not entitled to an injunction herein as prayed for, and that the plaintiffs are entitled to no judgment for any damages by reason of the erection and maintenance of the fence by the defendants.” Plaintiffs alleged that the erection of the fence was not authorized by the decree of condemnation, which was the only basis of the defendants’ claim of right to erect the fence; that the fence was not necessary for the operation of the defendants’ industrial track, or any other use by them of the property so condemned; that the maintenance of the fence was a use of the property additional to that authorized by the condemnation decree; and that it was erected by the defendants for the malicious purpose of annoying and injuring the plaintiffs. Plaintiffs further alleged damages to their business by reason of the erection of the fence such as found by the court. In their answer the defendants specially denied each and every allegation set forth in the plaintiffs’ petition, and specially pleaded-that it was necessary for them to erect the fence in order to protect the public and their employés from injury resulting from the use of its track erected upon the strip of land condemned; that the plaintiffs were maintaining a saloon and restaurant for negro patrons in the rear thereof, doors from both of which opened out upon the right of way condemned; that large numbers of vicious and disorderly persons would congregate about such doors and would pass in and out of said places of business, and thus constitute a source of annoyance to the defendants and of injury to the public; that the erection of said fence was for the defendants’ own protection, and was not an invasion of any of plaintiffs’ rights. Appellants invoke the well-settled rule announced in Muhle v. N. Y., T. & M. Ry. Co., 86 Tex. 459, 25 S. W. 607, Olive v. Sabine Ry. Co., 11 Tex. Civ. App. 208, 83 S. W. 142, and other authorities, that a condemnation decree passes only the right to the specific use therein awarded, and the right remains in the owner of the fee to use the property in any manner not inconsistent with the uses for which it was condemned. They insist that the facts found by the trial judge, to which no exception was presented in the trial court by the defendants, conclusively show that the right to maintain the fence in controversy was not given by the condemnation decree, and hence that the maintenance of the fence was in violation of the rights reserved by the owner of the fee which passed to plaintiffs as lessees of the hotel property, and that the trial court erred in refusing to grant a mandatory writ of injunction for the removal of the fence and in refusing to award to plaintiffs the damages to their business found by the court.' Special stress is laid upon the findings that the industrial track is located 17 feet 4 inches from the east wall of the hotel building, with a public passageway constructed and maintained by the defendants between the industrial track and said building for the use of vehicles and foot passengers ; that the fence is not necessary for the safe operation of the industrial track; that the maintenance of the- fence is a use of the property condemned additional to that authorized by the condemnation decree; that the contemplated coach track has never been constructed, and will, when constructed, be located east of the industrial track; and that the plaintiffs have sustained substantial damages to their business by reason of the fact that entrance to the saloon and restaurant from the strip of land in controversy has been cut off. [1] For a better understanding of the issues it is proper to note at the outset that the maintenance of the fence is not an additional use of the property, but rather a means adopted for the protection of the defendants in the exercise of the uses specially enumerated in the decree of condemnation. On the former appeal of this case, speaking through Associate Justice Buck, this court, after reviewing the authorities pertaining to the relative rights of the owner of the fee and the railway company to the uses of the property condemned after the same had been condemned, said: “We feel that it must be held, as a matter of law, that the subjection of the right of way of the railway company to uses of a highway or passway for the patrons of a restaurant or other place of business is inconsistent with the use of said property for railway purposes, and that therefore the appellants in this case were within the rights accorded them under the law when they sought to exclude patrons of this restaurant, and the public generally, from using their right of way as such highway or passway. The use of such property for said purposes would largely increase the hazard of accident, and consequently, the liability of the railway company, and therefore, in preventing its use for such purposes, the railway company would be taking a course, not only within the conservation of its own rights, but in the protection of the public.” [2, 3] We have found no authorities which-contravene the correctness of that conclusion, and we adhere to it now. And, if that conclusion is correct, then the findings of fact by the trial court that the maintenance of the fence is not necessary to the safe-operation of the industrial track, and is an additional servitude upon the property condemned, cannot destroy the right of the d>e-fendants which they have as a matter of law to maintain the fence, and are therefore immaterial, and are of no binding force or effect upon the defendants, even though they did not except to the same as findings of fact. [4,5] By article 6603, Revised Statutes 1911, the duty is imposed upon railway companies to fence their track in localities where stock are permitted to run at large, and also- *948 in localities which have adopted the stock law, prohibiting stock from running at large, and the rule is well settled in this state that that statute was enacted, not only for the protection of animals, but especially for the purpose of protecting human life from derailments caused by striking such animals. T. & N. O. Ry. Co. v. Langham, 95 S. W. 686, and authorities there cited. Such being the law, the acquisition of a right of way in such localities under condemnation proceedings clearly would embrace the right to fence the track, and under those circumstances the owner of the fee could not be heard to say that the fencing of the right of way was an additional servitude placed upon the property, or that the same was unnecessary to the safe operation of trains over the right of way. Condemnation proceedings in a town or city are not different from those in the country, and, even though the statute referred to might not require the fencing of the right of way inside of a town or city, nevertheless it would be the common-law duty of the railway company to do so if, as a matter of fact, such a fence was reasonably! required for the protection of lives of persons who might go upon the track at places where they had no legal right to be, and the condemnation of the land in controversy carried with it the right to fence the track if such fencing was necessary to the discharge of that common-law duty. [6, 7] Furthermore, it is a familiar rule that, if the railway company habitually permits the public to use its track as passways at places other than public crossings, such persons become licensees, to whom the railway company owes a higher degree of care to avoid injuring them in the operation of its trains than it owes to a mere trespasser, and hence the legal burden upon the railway! company in the operation of its trains is increased accordingly. Further still, it was held in Lyon v. McDonald, 78 Tex. 71, 14 S. W. 261, 9 L. R. A. 295, that the owner of the fee had no right of passage over ground that had been condemned by the railway company, since such- owner was not prevented from crossing the same at any public crossing. If the owner of the fee has no such right of passage, then a fortiori he has no right to claim such right of passage in the public as an incident to their patronage of his business conducted on property adjoining the condemned land. [8] Furthermore, if the finding that the fence was not necessary to the safe operation of the industrial track be construed as meaning that the defendants in the operation of that track were not required to exercise any higher degree of care for the safety of the public and of their employds in the absence of the fence than would be required with said fence, then such finding is contradicted, to some extent at least, by the facts stated in the twenty-third paragraph of the findings, which show that passengers from trains are in the habit of occasionally crossing the strip in controversy from the Union Station for the purpose of entering the back door of plaintiffs’ saloon, and that such persons sometimes congregated about the doors opening into the saloon and restaurant, and sat upon beer kegs around the door, in connection with the further facts stated in the thirty-first paragraph of the findings showing a large patronage to plaintiffs’ business! through the back door of the saloon and the side door to the restaurant. The judgment rendered was in favor of the defendants, and every reasonable presumption must be indulged to support it, and, if the issue whether or not, in the absence of the fence, defendants, in the operation of trains on the industrial track, would be required to exercise a higher degree of care for the protection of the public and their employds, be one of the pivotal issues in the case, as insisted by appellants, then it must be presumed that the court found that issue in favor of the defendants, and we are of the opinion that the facts last recited are sufficient to support that conclusion. [9,10] Nor do we think that the probative force of those facts is necessarily destroyed by the further facts found by the court that defendants failed to fence other tracks running nearer saloons and restaurants than the industrial track in the present suit, especially in the absence of any finding whether or not persons are in the habit of crossing such tracks and congregating near the same at those places, and the further fact that defendants maintained a passageway for public travel between the industrial track and the fence. The said passageway runs parallel with the house track until it reaches the point Where it crosses that track. Persons loitering upon the condemned property and walking across it at places other than the crossing named necessarily would impose upon the defendants an added burden to- keep a lookout for them. [11] We are of the opinion that there is no merit in the further contention by the appellants that the railway companies are es-topped to claim the right to maintain the fence by reason of the facts found by the court and shown above, principally that defendants stood by and allowed the plaintiffs to spend some $25 or $30 in money for the purpose of using the passageway lying next to the building, which defendants had held out as a public thoroughfare for the last three years, since, as said in F. W. & D. C. Ry. Co. v. Ayers, 149 S. W. 1068, permissive use of a road or way across uninc-losed land does not ripen into a right, however long existing. See, also, Ramthun v. Halfman, 58 Tex. 551; N. P. Ry. Co. v. Smith, 171 U. S. 260, 18 Sup. Ct. 794, 43 L. Ed. 157; Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765, 40 L. R. A. 177. [12,13] The judgment of the trial court in *949 favor of tlie defendants necessarily implies a finding adverse to plaintiffs on their, plea of estoppel. If defendants liad the rigfit to fence the track, and if the permissive use of the passageway did not ripen into a right on the part of the public to use it as such, we fail to see how the principle of estoppel would apply by a mere knowledge on the part of the defendants of plaintiffs’ intended use of the property and of the expenses incurred by them in making openings in the building leading to that passageway, coupled with their failure to object to such improvements until alter the same were made. No facts are found indicating a willful desire on the part of the defendants to mislead the plaintiffs into incurring such expenses within the meaning of the rule announced in Timón v. Whitehead, 58 Tex. 295, cited by appellants. L14,15] The use by the public of the passageway for a period of three years would not be for a sufficient length of time to constitute a dedication of such highway by prescription. Heilbron v. St. L. S. W. Ry. Co., 52 Tex. Civ. App. 575, 113 S. W. 610, 979. If the facts found by the trial court that the defendants had maintained the passageway for the use of the public for three years could be construed as a finding that the de-' fendants irrevocably dedicated the same as a public highway, which construction we believe would be unwarranted, nevertheless such a dedication could not confer upon the plaintiffs any special rights to the use of the highway different from that enjoyed by the public at large, and the right to use it for the purposes claimed in this suit clearly would not be a right common to the public. Hughes v. Dubbs, 84 Tex. 502, 19 S. W. 684. For the reasons noted all assignments of error are overruled, and the judgment is affirmed. Footnotes [1] <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] <S^xoFor other cases see same topic- and KEY-NUMEER in all Key-Numbered Digests and Indexes