180 S.W. 1138 | Tex. App. | 1915
This is a second appeal of this case, the cause having been reversed on the former appeal because a general demurrer was sustained to the petition. Mosel v. Railway,
On the former appeal of this cause it was held that a railroad company could move its depot from one part of a town or city to another location therein, provided it was shown that it was for the benefit of a majority of the inhabitants thereof. It was *1139
held in regard to article
The burden of showing that such removal, or change, of depot would be beneficial to the interests of a majority of the citizens rested on appellant, and it devolved upon it to introduce testimony, showing that it had the right or authority to move its depot. In this case, however, no testimony was submitted, and the record fails to show that any was offered by appellant. On the other hand It is recited in the order or decree of the court:
"On this July 30, 1915, the application of the plaintiffs in the above-stated cause for a temporary injunction restraining the defendant, San Antonio Aransas Pass Railway Company, from removing its passenger depot off the depot grounds of said company at Kerrville, was duly heard before the undersigned judge of said court pursuant to due notice, and, having heard and considered the third amended original petition and supplemental petition of plaintiffs and the first amended original answer and supplemental answer of said defendant, the matter having been submitted upon said pleadings, and having heard the argument of the respective counsel of the parties, I am of the opinion that the writ should issue as prayed for."
There is not in the record anything indicating that appellant objected to having the case submitted on the pleadings, nor that any objection was made to the recitation in the order. The order must be presumed to state the truth, and it is authoritative. No effort was made to correct it if it was wrong, and its recitals cannot be attacked on appeal. The cause having been submitted on the pleadings, and enough of the petition remaining undenied to form the basis for the order, the court did not err in issuing a temporary injunction to maintain the status quo until the cause could be fully developed.
Without an agreement upon the part of appellant to submit the cause on the pleadings, which amounted to an agreement that the admitted facts stated therein would be proved, the proposition of appellant that a court is not authorized to grant an injunction upon a sworn bill and answer, without hearing evidence supporting the allegations of the bill, is well founded. But where it is agreed that the plaintiff will be able to introduce evidence to sustain their sufficient allegations to make out a case, the proposition does not apply.
If, as admitted by appellant, the first deed to it by Schreiner had no conditions as to the location of the depot, but it was not recorded, and afterwards another deed was executed by Schreiner, containing such condition or restriction, and was delivered to and accepted by appellant and placed upon record, and that appellees bought their property after such deed was recorded, appellant would be estopped to set up the unrecorded deed to affect their rights. Appellant cannot be heard to plead an unrecorded deed to deprive people of rights acquired under a deed filed for record by it, which fixed its status towards any purchaser under the terms of the recorded deed without notice of any other deed. Appellant cannot be heard to deny the existence of conditions in a deed when it has recorded the deed and has induced others to purchase land on the good faith of the recitals in the deed. It is undoubtedly true, as contended by appellant, that its possession under an unrecorded deed would be notice of its title to the land, but by afterwards accepting and recording another deed to which conditions were attached, appellant estopped itself from claiming rights under an unrecorded deed which would be inimical to innocent purchasers. The allegations of appellees' bill on the subject of the first deed being unrecorded, and the second recorded with its conditions, was not denied by appellant, and consequently the court could take them as being true.
The protest addressed by appellees to appellant against removal of the depot, unless certain things were done, does not show acquiescence upon the part of appellees in the change of location. The protest was ignored by appellant, and no offer was made on its part to comply with the conditions mentioned in the protest.
*1140The judgment is affirmed.