80 S.W. 988 | Tex. | 1904
Certified question from the Court of Civil Appeals of the Third District, as follows:
"Appellee brought suit in the Justice Court of Precinct No. 1, Comal County, to recover for damages alleged to have been sustained by him on account of the failure of appellant to erect and maintain cattle-guards at the points where its railroad entered the inclosure of appellee, in accordance with article 2533 of the Revised Statutes of Texas.
"Upon appeal to the District Court of said county, which had jurisdiction of said case, appellee recovered judgment for $175, from which this appeal is prosecuted.
"The evidence discloses that the appellant, prior to any of the damages complained of, obtained from appellee and his wife a general warranty deed, duly executed and acknowledged, to the strip of land 100 feet in width on which its right of way is situated, and over which its railroad is constructed. It has during all the time complained of had its right of way fenced entirely across this strip on each side, but in this right-of-way fence has erected and maintains gates, affording appellee ingress and egress to his land upon each side of the railroad.
"By proper assignments of error and propositions, the appellant presents the question whether the provisions of articles 4523, 4524, 4525, 4526 and 4527 apply in cases where the railroad company has not condemned its right of way, but owns the land under a proper conveyance.
"In view of the fact that the jurisdiction of this court is final in this case, and of the importance of the question involved under the foregoing facts, the Court of Civil Appeals of said district certifies to the Supreme Court the following question:
"Do the articles of the statute above referred to apply to a case where a railroad is constructed through an inclosure where the railroad company *583 obtained title by conveyance to the land on which the railroad is constructed?
"As possibly bearing upon the question certified, we respectfully refer to the opinion in the case of Calcasieu Lumber Co. v. Harris,
The question is answered in the affirmative.
In Houston E. W.T. Ry. Co. v. Adams,