32 Tex. 723 | Tex. | 1870
The defendants in error sued plaintiffs in error for damages to block Ho. 23, on the north side of Buffalo Bayou, in the city of Houston, in disregard of themselves and their ancestor, on the 1st of January, 1859, and from that day to the institution of the suit.
An amended petition states that the same corporation, by a different name, committed a trespass on the same land some years before, and while the land belonged to their ancestor. '
The defendants pleaded not guilty.
There was an ex parte trial, the plaintiffs only appearing, and a verdict and judgment for two thousand dollars was. rendered for Merkel. The railroad prosecutes this appeal.
The proceedings are evidently erroneous. The petition discloses that the railway company took possession of a portion of the land before the plaintiffs were purchasers thereof, and have held it adversely ever since. The company was liable to pay the owner of the land when they took possession of so much thereof as was used for their road, “ the damages so done the real estate and property of the said owner by the construction of said railroad, and by the condemning of said real estate and property for the use aforesaid.” (Paschal’s Dig., Art. 4922.)
As the court did not so frame its judgment that the land used by the said company was vested in the company for its use, and as it can not be known from the pleadings how much of the land of plaintiffs is used by the company, nor what the locality of the same is, the judgment will be reversed and remanded, with direction to the parties to so amend the pleadings that the land taken and used by the road shall be described by metes and bounds, in order that the court may ascertain “ the damages that were caused to the lands and property of the owner,” at the time the company took possession thereof; and,
Reversed and remanded.