Kuhlman v. Houston Belt & Terminal Ry. Co. , 1926 Tex. App. LEXIS 1102 ( 1926 )

The contentions in appellants' brief are: (1) That the question as to whether appellee abandoned the intention it had in 1905 to use the land for right of way purposes was one of fact, and that the trial court therefore erred when he treated it as one of law and refused to submit it to the jury; (2) that the legal effect of the judgment was to vest the title to the land in appellee, whereas it was not entitled in any event to an award of anything more than a right to use the land for the purpose for which it was condemned.

In disposing of the appeal, it will not be necessary to again refer to the second one of the two contentions, for we think the first one must be sustained and the judgment reversed and the cause remanded for a new trial.

Appellee admitted at the trial (which was in February, 1925) that it had never "built upon or used" the land for any purpose, and that same was then, and "for several years last past" had been, in the possession of appellants.

It is held that abandonment by a railway company of a right to use land, condemned for right of way purposes, cannot be predicated on nonuser alone of such land for such purposes. 20 C.J. 1235. But it also is held that such nonuser, when accompanied by an intent never to so use the land, operates as an abandonment of such right. Tel. Co. v. Ry. Co.,89 So. 518, 206 Ala. 368. It is also held that such nonuser, if long continued, is evidence of such intent (Home Real Estate Co. v. Los Angeles Pacific Co., 126 P. 972, 163 Cal. 710); and in Ry. Co. v. Clark (Tex.Civ.App.) 146 S.W. 989, it was held that the failure of the railway company for seven years to use land condemned for its purposes "raised a legal presumption of the intention to give up the right of easement and cast the burden of proof upon the company to explain the nonuser, and to show it had a definite intention to use the property for a purpose for which it was condemned at a fixed time, or upon the happening of some well-defined contingency." And see Muhle v. Ry. Co., 25 S.W. 607,86 Tex. 459.

As noted in the statement above, appellee admitted at the trial that it had made no use whatever of the land from the time it had it condemned in 1905 to the time of the trial in 1925 — a period of 19 years, or longer. It would seem, therefore (unless the holdings in the cases referred to above should be ignored, and we see no reason in law why they should be), that a jury might have found that appellee had abandoned the intention it had in 1905 to use the land for right of way purposes. If they might, then, of course, it was error for the court to take the case from them as he did.

Appellee's argument in support of the action of the trial court is that the testimony of its chief engineer and general manager referred to in the statement above "conclusively rebutted" any presumption arising from its failure for 19 years to use the land. It insists that —

"The rule now is that, even where circumstances are sufficient to raise prima facie the issue of abandonment, nevertheless those circumstances do not go further than to raise that issue, and any inference therefrom may be conclusively rebutted and the prima facie issue destroyed."

Assuming that the rule is as appellee states it, it cannot be said that the testimony of its chief engineer and general manager referred to in the statement above "conclusively rebutted" the presumption arising (according to the holding of the court in the case last cited) from the long-continued nonuser of the land. It is held that the testimony of railway officials is not conclusive of the question as to whether the company intended to abandon a right of way it had acquired or not. Ry. Co. v. Ry. Co., 166 P. 163, 64 Okla. 62; Ry. Co. v. Clapp, 66 N.E. 223,201 Ill. 418.

The judgment is reversed, and the cause is remanded to the court below for a new trial.