Citation Numbers: 151 S.W. 578, 1912 Tex. App. LEXIS 692
Judges: Rainey
Filed Date: 10/26/1912
Status: Precedential
Modified Date: 10/19/2024
Appellee, claiming the right of way oyer 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 appel-lee was awarded the right of way upon the payment of $100. From this judgment, appellant appeals.
Conclusions of Fact.
In January, 1887, the Denison, Bonham & New Orleans Railway Company was chartered by the state of Texas to construct a railroad from the city of Denison, in Gray-son county, Tex., in and through the counties of Grayson, Fannin, Hunt, and Delta, by way of Bonham, in Fannin eounty. Said railway company, in 1888, graded its roadbed from Denison to Bonham; and it procured the right of easement over the land in controversy, except the three acres from one Turley, who then owned the land. After grading the road, in 1888 the Denison, Bonham & New Orleans Railway Company became insolvent, and did nothing further toward constructing its road until 1901, when its properties, rights, and franchises were sold under execution and bid in by the Denison, Bonham & New Orleans Railroad Company, which had been incorporated for that purpose; and the president, directors and stockholders of said railway company, by deed in writing, conveyed unto the Deni-son, Bonham & New Orleans Railroad Company all the right, title, and interest of the railway company to said property. This was done March 13, 1901. The Denison, Bonham & New Orleans Railroad Company then constructed its track over the right of way of the old railway company from Bon-ham to within five miles of Denison, at which point it deflected and connected with the track of the Missouri, Kansas & Texas Railway Company, over which it operated its road into the city of Denison. The right of way in question is located on that part of the line between Denison and where the Denison, Bonham & New Orleans Railroad Company’s track deflects from the old line to connect with the Katy Road.
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 appel-lee’s track into Denison. The appellee’s road runs practically north from Denison, Tex., to Waggoner, Okl.
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 ihtention to utilize said right of way as soon as practicable.
Conclusions of Law.
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.