Judges: Rainey
Filed Date: 10/26/1912
Status: Precedential
Modified Date: 10/19/2024
Appellee, claiming the right of way over certain land, sued out a writ of injunction against appellant, who threatened, by force and violence, to prevent appellee from entering upon and constructing its railway on and across said land.
Appellant claimed to have purchased the land without notice of appellee's claim, and pleaded the statutes of limitation and abandonment of said right of way by appellee's grantors.
Upon a hearing judgment was rendered perpetuating said injunction, except as to one tract of three acres, over which appellee was awarded the right of way upon the payment of $100. From this judgment, appellant appeals.
The Denison, Bonham New Orleans Railroad Company transferred its right to the five-mile strip of right of way to the Missouri, Oklahoma Gulf Railway Company for a valuable consideration, with an agreement that the Denison, Bonham New Orleans Railroad Company could use appellee's track into Denison. The appellee's road runs practically north from Denison, Tex., to Waggoner, Okla.
When the Denison, Bonham New Orleans Railway Company first constructed its grade, gates were placed in each fence where the grade passed through, and the owners of the land remained in possession, using and cultivating the land on either side. When appellant, Scott, bought from Turley, he saw the grade that had been constructed; but he made no inquiry about the easement, although he could have learned thereof by so doing. Turley remained in possession until he sold to Scott, without in any way repudiating the right of the railway company to its easement; and when Scott bought he took possession, held it in the same way, and never did anything indicating that his right was adverse to the claim of easement. There was no intention of abandonment of said easement by the railway company; it being the intention to utilize said right of way as soon as practicable.
2. The forfeiture of its charter by the Denison, Bonham New Orleans Railway Company to construct its road within the time required by law did not cause its right of way to revert to the original owner of the fee; but such easement remained subject to the provisions of article 4473, Revised Statutes, which provides, in case of forfeiture of a railroad charter, its right of way "shall remain subject to an extension of the charter or the grant of a new charter over the same way without a new consideration." In this connection we remark that we see no difference whether the right of way is acquired directly from the owner of the fee, or by condemnation proceedings.
3. The appellant's plea of limitation is not sustained by the proof. The possession of appellant and of his grantor was not inconsistent with appellee's right of easement; there being no acts of either showing *Page 580 that they held adversely to the railway company's right of easement.
4. The facts fail to show an abandonment of said right of way. The evidence shows no intention of abandonment on the part of the railway companies. They graded it, paid taxes on it, and never ceased trying to use it for railroad purposes, and finally succeeded in putting it to the use for which it was originally acquired.
5. We find no material error in the record, and, considering all the circumstances, we think the justness of the case has been reached, and the judgment is affirmed.