T. & St. Louis E. E. Co. v. Jarrell

60 Tex. 267 | Tex. | 1883

West, Associate Justice.

The admissions of appellee in his . pleadings, and his own testimony, as well as the evidence of other witnesses on the trial, tend very strongly to show that he had at one time agreed and contracted with the appellant to give the right of way through his farm near Athens, provided the citizens of Henderson county were under legal obligation to the appellant to secure the same.

The proof is also practically uncontradicted to the effect that, acting upon this contract and understanding with the appellee, the appellant had some time before, probably a short time, but certainly at some date previous to the appellee’s attempt to revoke the authority so given to them, actually under this understanding, entered peaceably upon appellee’s land, and though they had not graded their track through his property, had selected, by its proper officers, its line through his land, and had to some ‘extent cleared the right of way, and were so in possession and so engaged, when the appellee, for the first time, forbade their proceeding further.

Whether he forbade them absolutely, even then, is not perfectly clear from the proof.

There is much testimony going to show that he then agreed that they might still continue their work if they would throw and heap the dirt from the cuts and excavations in a particular manner.

There is also some evidence going to show that about this time appellee agreed to sign a deed securing to appellant the right of way through the land in question, but afterwards refused to sign it.

Under all the facts disclosed as to the agreement in reference to the right of way, and as to the actual entry by appellant under such agreement, and the things transpiring between the parties after the entry, we are of the opinion that matters had reached a stage at which this agreement, or license to enter, could not be entirely repudiated by the appellee, and the permission to enter be revoked, and that in reason, as well as on the authority of like cases, he could not maintain the action of ejectment under the circumstances for the purpose of recovering from the appellant the strip in question used by them for operating their road through his land. Mills on Em. Domain, sec. 142, and cases cited in notes thereto; Provolt v. Ch., R. & Pac. R. R. Co., 9 Am. Railway Rep., 161; Same Case, 57 Mo., 256.

In view of the disposition we have concluded to make of the case, it is not deemed necessary, now, to discuss the question of damages. Smith v. Feris, 13 N. Y. Sup. Ct., 553; H. & E. T. R’y Co. v. Adams, 58 Tex., 476.

Eor is it necessary to review at any length the charge of the court, which, though in the main correct, was in some few respects liable to criticism.

On another trial these matters will probably be placed before the court and jury in a different light, and will demand a charge suited to the phase of the case as then presented by the pleadings and evidence.

We think the court erred in permitting the counsel of appellee, in his concluding address to the jury, to use the language contained in the bill of exceptions, and that the toleration of it by the presiding judge was calculated to prejudice the rights of appellant. Rules of Dist. Court, Nos. 39, 40, 41 and 121; Willis & Pro. v. McNeill, 57 Tex., 475; Thompson v. State, 43 Tex., 274; Hatch v. State, 8 Tex. Ct. App., 416.

We think, also, that there was error in the action of the court, under the circumstances of this case, as stated in the bill of exceptions, in excluding from the consideration' of the jury the original subscription list, signed by the citizens of the town of Athens and county of Henderson, showing that the right of way had been guarantied by the subscribers to the railroad company.

We are also of the opinion that the court should have given in some form the substance of the special charge asked by the appellant, to the effect that, though the appellee did not make an express • contract giving to appellant the right of way, yet if he had knowledge that appellant had entered on his land for the purpose of constrncting its railroad bed there, and that trees were then being cut and removed for the purpose of preparing the right of way for grading, and by his acts at the time acquiesced in such entry, or, after such entry, ratified the same, and by not demanding prepayment of damages, or dissenting in some other manner, and informing the agents of appellant that he would make no further objection and that they might proceed with the work, and did in fact allow them to proceed, without further opposition, that such acts or acquiescence of his amounted practically to a consent on his part for appellee to proceed.

This instruction, though somewhat objectionable in its form of expression, as presented for the action of the court, still contained matter that, under the pleadings and evidence in this case, should have been very distinctly, indeed, submitted to the jury; if not in that precise language, at least in some form, fully and clearly, in the main charge.

This was not done in such a manner, as to present that issue with sufficient clearness for the consideration of the jury, under all the facts in evidence before them in this case.

The judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered October 30, 1883.]