18 S.W. 145 | Tex. | 1891
This suit was brought by appellee to recover of appellants Fordyce and Swanson, as receivers of the St. Louis, Arkansas Texas Railway Company, damages for the construction of a railway by the railway company across a tract of land. He sought compensation for the land appropriated for the right of way, and also for damages to the remainder of the tract. The plaintiff was the owner of the land at the time the railway was constructed, but had sold it to appellant Measles before the bringing of this suit. He made Measles a party defendant, alleging that when he sold and conveyed the land to the latter he reserved his claim for damages against the railway company. The receivers prayed for a condemnation of the land for railway purposes, and asked that the damages should be assessed in the action. The defendant Measles pleaded, alleging his purchase of the land before the bringing of the suit, and prayed for a judgment *241 in his favor for all the damages resulting both for the trespass and condemnation. The judgment of the court, however, was that the plaintiff should recover of the receivers not only the damages to the tract for the construction of the road, but also compensation for the land condemned, and that defendant Measles should take nothing by reason of his plea in reconvention. Both the receivers and Measles appeal from the judgment.
The receivers complain only that the damages allowed are excessive, but since the judgment will be reversed upon another ground, it is unnecessary if not improper to pass upon that question.
Appellant Measles insists that the court erred in not rendering judgment in his favor for the damages, not only for the land taken but also for the damages resulting to the remainder of the tract from the construction of the railway. The facts bearing upon this question are, that the railway company constructed their road across the land in question some time in the spring or summer of 1887, and in June or July of that year instituted proceedings to condemn the right of way over it. In November of the same year appellee sold and conveyed the entire tract to appellant Measles by a general warranty deed, which described it by metes and bounds, and which contained no exception or reservation whatever. In January, 1889, the condemnation proceedings were dismissed. In July, 1889, the present suit was brought. Section 17 of article 1 of our Constitution provides in effect that no person's property shall be taken for a public use without adequate compensation being made; and it follows, therefore, that the title to property which is attempted to be appropriated for such purpose does not pass until the compensation has been paid or secured. If the proceedings instituted against the appellee for the condemnation of the land had resulted in a final decree assessing the damages and the damages had been paid, the appellant Measles as a purchaser pendente lite would, as to the railway company at least, have been concluded thereby. But this proceeding having been dismissed, we are of opinion that the rights of the parties to this suit were in no manner affected by it, and that this case is to be treated as if no such action had ever been instituted. At the time, therefore, when appellee conveyed the land to Measles the railway company was a mere trespasser, and appellee's title was unimpaired by its entry upon and use of its right of way. He had, however, a right of action against it for such damages as resulted from its trespass. It is clear, we think, that by his warranty deed all his title to the land passed to Measles, and it is equally clear that his right of action to recover the damages for the mere trespass did not pass. For the latter he had a right of action, and it was not affected by his conveyance to his vendee. The measure of his damages was the injury to the land which resulted from the mere construction of the railway, and compensation for the use of so much of the land as was occupied by the *242 company from the time of its entry until the date of his conveyance to Measles.
In the case of Railway v. Ruby,
There was error in adjudging that the appellee should recover the entire damages, and that Measles should take nothing, and therefore the judgment is reversed and the cause is remanded.
Reversed and remanded.
Delivered November 13, 1891.