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corporations owning lots abutting on said FT. WORTH & D. C. RY. CO. v. MAPES street, and that the location of those tracks et al.

upon that street was not necessary for the (Court of Civil Appeals of Texas. Ft. Worth. use or convenience of the public at large or March 1, 1913. Rehearing Denied

for the purpose of performing any duty March 29, 1913.)

which defendant owed to the public; that RAILROADS ($ 222*)-OPERATION-NUISANCE, such side tracks, located at some other placLIABILITY.

A railroad company constructing and main- es which were as available to defendant as taining, as authorized by ordinance, tracks in a those in question, and the use of same at street for the storage and loading and unloading such locations, would result in no annoyance of cars, in connection with its depot, is not lia; to plaintiff in the occupation of her home. ble for injuries to an abutting owner, caused She also alleged that the nuisance comby noises, dust, cinders, and odors, though the tracks were originally constructed for private plained of had depreciated the market value concerns, and though the private concerns are of her property and prayed for damages for deriving more benefit from the tracks than the such depreciation as well as for the personal general public, since the company could under Rev. Civ. St. '1911, art. 6504, have condemned discomfort suffered by her. In the court's the land for the tracks if owned by the abutting charge the only measure of damages submitowner, especially where the construction and ted was for the alleged annoyance and disoperation of the tracks did not depreciate the comfort to plaintiff in the occupancy of her value of the abutting property but enhanced its home, and the jury were expressly instructed value.

[Ed. Note: --For other cases, see Railroads, not to consider the testimony which defendCent. Dig. $$ 720-724; Dec. Dig. § 222.*] ant had introduced upon the trial strongly

tending to show that the market value of Error to District Court, Wichita County : plaintiff's property had been enhanced by P. A. Martin, Judge.

the construction of the side tracks in quesAction by A. E. Mapes and another against tion, as thereby the property has been renthe Ft. Worth & Denver City Railway Com-dered desirable as trackage property, and pany. There was a judgment for plaintiffs, hence more valuable for commercial purand defendant brings error. Reversed and

poses. rendered for defendant.

The main line of defendant's track crossed Huff & Bullington, of Wichita Falls, for Michigan avenue south of the location of plaintiff in error. Montgomery & Britain, of plaintiff's home, running diagonally across Wichita Falls, for defendants in error. it, and adjacent to and parallel with this

main line were six other side tracks also DUNKLIN, J. Mrs. A. E. Mapes owned a running diagonally across that street; the home in the city of Wichita Falls fronting on street being thus partially or wholly utilized Michigan avenue, a public street running by said side tracks and the main line for approximately north and south. She, to- more than two blocks, beginning with the gether with her family, had occupied the first block south of plaintiff's property. Dehome which was her separate property, for fendant introduced evidence tending to show several years, when in 1910 the Ft. Worth that the annoyances of which plaintiff com& Denver City Railway Company constructed plained were due in whole, or at least in a side track along the center of Michigan part, to the operation of trains on these avenue. It also constructed another side side tracks and the main line, and the court track intersecting the one in the center of instructed the jury that no damage could the street in front of plaintiff's home and be allowed plaintiff for discomfort suffered running in a southeasterly direction practi- by her as a result of the operation of trains cally across the street and terminating at upon any tracks other than two side tracks the Carroll, Brough, Robinson & Gates Com- first mentioned above which were constructpany's wholesale house situated in the nexted in front of her home. But in the charge block south of the block in which plaintiff's the jury were instructed to allow plaintiff home is situated and on the same side of damages for such personal annoyance and Michigan avenue.

discomfort suffered by her in the occupancy Mrs. Mapes, joined by her husband, in- of her home as resulted from disagreeable stituted this suit against the Railway Com- noises, vibrations, and smoke incident to the pany to recover damages for personal dis- operation of engines and cars upon the two comfort which she alleged she suffered while side tracks in front of her home, provided occupying her home as the result of smoke, the jury should further find that said tracks cinders, sparks of fire, and noises caused by were constructed for the purpose of furnishthe operation of defendant's engines and ing sidings to private enterprises alone and cars upon those side tracks and as a result not for the use or benefit of the general pubof obstruction of ingress to and egress from lic, and that such side tracks, if necessary her home caused by the standing of cars for the handling of business for the public, upon those tracks, all of which incidents i could reasonably and practically have been constituted a nuisance. She alleged that the constructed at some other place where the side tracks were constructed solely for the operation of the engines and cars thereon use and convenience of private persons and I would work no inconvenience or annoyance *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No Series & Rep'r Indexes

con

to plaintiff in her home. The jury were fur-, tendent told me that. He told that because ther instructed as follows: "If you believe I asked him, and I asked him because it was from the evidence that the switch tracks a track. We do use all tracks for any purcomplained of by plaintiff were constructed pose we want to. I asked him because he for the public use or for the benefit of the was there; he was looking over the ground. general public, and that it was reasonable It was built there to be used for all purand necessary that such switches should be poses. This track along Michigan avenue is so constructed in Michigan avenue in order used for switching all of these industries; it that the defendant company might perform is what we call a lead; all of these tracks its duties to the public, then you will find lead off from it; we use it in going from for defendant; or if you believe that the one spur to the other; it would be the main plaintiffs have not suffered any annoyance line to all of these spurs. We have got to or inconvenience from the operation of trains use it when we go there for any purpose.” or engines on said switch, you will find for

W. M. Langford, one of the defendant's endefendant."

gine foremen, after testifying to the numerFor the alleged personal annoyance to ous uses made of the tracks including the plaintiff the jury allowed her damages in storage of cars, said: “We have placed cars the sum of $575.

for the city, there to unload. This CarrollPlaintiff's petition contained no allegation Brough-Robinson-Gates Company's track is that the defendant operated its engines and used principally to work that industry. We cars upon the side tracks in a negligent man have spotted cars there; they use that as a ner, but relied solely upon the contention team track. If a request is made to place that the operation of the same necessarily cars on any convenient track, it would be constituted a nuisance. The proof showed

granted; certain places were designated on that, by two special ordinances of the city that Michigan avenue track for cars to be council of the city of Wichita Falls, defend- placed, and they were placed there." ant was granted the right to construct the

The official of the defendant company untwo tracks in controversy upon and along der whose direction the tracks in question Michigan avenue just as they were

were constructed, and who could have exstructed. Appellant insists that the evidence

plained the purpose for which they were conclusively showed without contradiction that the side tracks or switches in question constructed, did not testify in the case. were necessary and essential to the discharge

Article 6481, Revised Civil Statutes 1911, of defendant's duties to the general public. reads: "Any railroad corporation shall have But while there much testimony tending

the right to construct and operate a railroad to show that those tracks were necessary

between any points within this state and to for the discharge of such public duties, yet connect at the state line with railroads of there were other facts and circumstances in other states." evidence which we think sufficient to sustain In the case of Rainey v. R. R. T. & S. Ry., a finding by the jury to a contrary effect. 99 Tex. 276, 89 S. W. 768, 90 S. W. 1096, 3 Two of defendant's engine foremen and also L. R. A. (N. S.) 590, 122 Am. St. Rep. 622, 13 its local agent employed in Wichita Falls at Ann. Cas. 580, our Supreme Court held that the time of the construction of the tracks an injunction might lie to restrain a railroad and since that time testified to various uses company from locating its machine and remade of the tracks including the storage of pair shops and necessary structures of a cars thereon, their use as team tracks, i. e., like character at such a place that their tracks upon which cars could be loaded and operation would cause personal annoyance unloaded from and upon private vehicles. and discomfort to citizens living in that vi

It was shown by the evidence that the cinity when another location equally as usePierce Fordyce Oil Company's tanks and also ful and convenient for such purposes is availan elevator were situated on Michigan ave- able to the company. But in reaching that nue and reached by the tracks in question. conclusion the court said: "Article 4445 of The local agent of the defendant further tes- the Revised Statutes also provides that: 'If tified that one purpose of building the tracks any railroad corporation shall at any time be was to serve the private industries located unable to agree with the owner for the puron the street such as the Carroll, Brough, chase of any real estate or the material Robinson & Gates Wholesale Company, but thereon required for the purpose of its inthat they were built for any use that the corporation or the transaction of its business, company might see fit to make of them. He for its depots, station buildings, machine and testified further: "It is true that we could repair shops, or for the right of way, or any have built tracks at other places to store lawful purpose connected with or necessary cars.

I did not have anything to to the building, operating or running its do with the construction of that track. I road, such corporation may acquire such am only agent here. They did not tell me property in the manner provided in this chapwhat the purpose was before they built it, ter.' The manner provided in the chapter is but they told me after they built it, they by condemnation. That a railroad company said, 'Use it for what you see fit, anything should have the right to designate its right you want to use it for.' The general superin- of way and to condemn property therefor,

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as well as to damage other property not tak- there under consideration and as were inen, would seem almost a necessity. Article volved in the cases first cited, the location 4424 of the Revised Statutes reads as fol- of which the law did not attempt in any lows: 'Every railroad corporation shall have way to control or influence. That the right the right to cause such examination and sur- of way and track of a railroad company is vey for its purposed railway to be made as excluded by the considerations stated from may be necessary to the selection of the the operation of the principle of the cases most advantageous route, and for such pur- referred to is expressly conceded in the pose may enter upon lands or waters of any Rainey Case and has long been the settled person or corporation, but subject to respon- law; and this is equally true of depots and sibility for all damage that may be occa- their necessary incidents. By articles 4492 sioned thereby.' We think it a reasonable and 4493, Revised Statutes, railroad comimplication from this provision that it was panies are required to locate their depot contemplated that the company was empow- grounds before they construct their roads ered absolutely to select such right of way as and are forbidden to change them, and by it should deem ‘most advantageous' to its article 4519 they are required to erect at enterprise. We are of the opinion, however, such depots suitable buildings, etc. It is that the case of machine and repair shops hardly necessary to add that side tracks and the like stands upon a different footing. at such stations are an essential part of the From the statute first quoted above, it is road, and are as much authorized and reseen that they have the express power to quired as the main line and stations. It condemn land for such structures, and of cannot be held, therefore, that the mere lonecessity they must make the selection of the cation of such tracks and stations near to location. But in our opinion it does not fol- the property of others gives rise to the lialow that the Legislature intended to empower bility here asserted. If so, the same liability them to act arbitrarily and without regard would arise to every one who might be anto any injury that might be inflicted upon noyed by trains passing along the main line, others."

for no reason could be given for the liaIn the case of St. S. F. & T. Ry. Co. v. bility in one case which would not be valid Shaw, 99 Tex. 559, 92 S. W. 30, 6 L R. A. in support of it in the other; and yet it has (N. S.) 245, 122 Am. St. Rep. 663, the court often been held that no such liability can be held that plaintiff, who resided near a rail- sustained consistently with the law which road company's depot, could not recover for authorizes the construction of such quasi the nuisance to her caused by noises, dust, public works.” cinders, and odors resulting from the opera

In the case of Daniel v. F. W. & R. G. Ry. tion of engines and trains upon its track Co., 96 Tex. 327, 72 S. W. 578, it was held near its depot station in the town of Deni- that damages recoverable resulting from a son, all constructed upon its right of way, nuisance caused by dust and noise emanatsaid tracks including five spur tracks, in ing from the use of a coal hoist from which the absence of a showing that such trains locomotiv engines were supplied with coal were operated negligently, and in the opin- were not limited to depreciation in the marion rendered in that case the court said: ket value of property located in that vicin“Here, the defendant, in the location of its ity, but might include personal annoyance right of way, its main track, its freight de- and discomfort suffered by the occupants pot, and such sidings and spurs as were nec- of such property. In M., K. & T. Ry. Co. essary to the proper carrying on of its v. Mott, 98 Tex. 91, 81 S. W. 285, 70 L. R. freight business and the discharge of its A. 579, it was held that damages for the duties therein, did only that which the law depreciation in the market value of residence authorized it to do. In other words, for the property by reason of the maintenance of public good, its action in these regards, so stock pens were recoverable. In Boyer 1. long at least as it was only a reasonable St. L., S. F. & T. Ry. Co., 97 Tex. 107, 76 S. exercise of the privileges granted, was made W. 441, it was held that the railway comlawful; and any incidental damage result- pany was liable for the depreciation in the ing to members of the public, beyond that market value of property caused by the caused to their property, against which they nuisance resulting from the construction and are protected by the Constitution, is to be operation of a railway in a street upon regarded as a damnum absque injuria, which which the property abutted. And to the must be borne because the work which in- same effect substantially was the decision flicts it is authorized by law for the general | in Rainey v. Railway, supra. welfare. Structures like that here existing It was shown by uncontroverted proof that are only such as the law requires railroad during the maintenance of the alleged nuicompanies to have as a necessary part of sance the side tracks were used for the serrtheir equipment and requires them to locate, ice of the public at large in connection with not at designated places, it is true, but yet appellant's depot at Wichita Falls, in fact with proper regard to the public interests. for practically the same purpose as any othAs is pointed out in the Rainey Case, this er side track in defendant's yards. And eren was not true of such structures as were I though it should be held that the use of the side tracks originally intended was not such and on the law which requires that defendant as to give appellant the right of condemna- should suggest the death of complainant's hustion under the circumstances instanced, we children parties; that she did not discover the

band and continue the cause, to make their think it can make no difference, since the dismissal until 'four months later, when her use now made of the track is unquestion. home was levied on and advertised for sale ; ably for the benefit of the general public. that, though she had been appointed as her husFor such uses as are now made of the tracks had been set aside to her by the probate court

band's administratrix, and the land levied on in question, appellant could have condemned as her homestead, and the same was in fact her the land covered by Michigan avenue if the homestead, no claim had been filed with her as same had been owned by appellee and had administratrix on said judgment. Held, that not been appropriated for a public street, tled to equitable relief, and the petition alleging

such facts showed that complainant was entieven though the private concerns located on them not subject to a general demurrer. Michigan avenue derive more benefit there- [Ed. Note.-For other cases, see Homestead, from than does the general public. Rev. Cent. Dig. 88 394-396; Dec. Dig. $ 213.*] Civ. Stat. 1911, art. 6504; Railway v. Shaw, 3. PLEADING (8 193*)—DEMURRER-LACHES. supra; Mangan v. Texas Transportation Co., A special exception to a petition to set 18 Tex. Civ. App. 478, 44 S. W. 998–1001, junction to restrain a levy on a homestead, in

aside the dismissal of a prior suit for an inand authorities there cited; 15 Cyc. 588– that the petition had not been acted on for 590; M. & St. L. Ry. Co. v. Nicolin, 76 Minn. eight years, could not be raised by demurrer. 302, 79 N. W. 304.

[Ed. Note.--For other cases, see Pleading, Plaintiff introduced no evidence to show Cent. Dig. $$ 425, 428-435, 437-443; Dec. Dig.

$ 193.*] that the market value of her property was depreciated by reason of the construction Appeal from District Court, Milam County; and operation of the side track in question, J. C. Scott, Judge. while evidence introduced by appellant show- Action by Dick Bailey and others against ed conclusively that the market value of the J. C. Arnold and others. Judgment for de property was enhanced by the construction fendants, and plaintiffs appeal. Reversed and operation of the tracks, as the property and remanded. was thereby rendered more valuable for

Henderson, Kidd & Gillis, of Cameron, for commercial uses as trackage property. In view of this proof made by appellant, and appellants. W. A. Morrison, of Cameron, for

appellees. as no proof to the contrary was offered by appellee, no reason appears for remanding

JENKINS, J. [1] There was no motion the cause for trial upon that issue. For the reason indicated, the judgment ly, the assignments of error, which are ob

for a new trial in this case, and, consequentof the trial court is reversed, and judgment jected to by appellee, cannot be considered here rendered in favor of appellant.

by this court; but appellant insists that there is fundamental error in the judgment

in that a general demurrer was sustained BAILEY et al. V. ARNOLD et al.

and that appellant's petition showed a good

cause of action. “A judgment sustaining a (Court of Civil Appeals of Texas. Austin. March 19, 1913.)

general demurrer, which is a declaration that

no cause of action existed, is fundamental, 1. APPEAL AND ERROR (8 285*)-MOTION FOR

NEW TRIAL-MOTION-DEMURRER TO PETI- and should therefore be considered, although TION.

the error is not assigned." Hall v. John Fundamental error committed by sustaining son, 40 S. W. 47'; San Antonio v. Talerico, a general demurrer to a sufficient complaint was reviewable on appeal, without a motion for 98 Tex. 154, 81 S. W. 519. a new trial.

[2] The petition in this case alleged that [Ed. Note. For other cases, see Appeal and on February 28, 1901, Dick Bailey, the husError, Cent. Dig. 88 1684–1690; Dec. Dig. 8 band of Leah Bailey, and the said Leah 285.*]

Bailey, filed in the district court of Milam 2. HOMESTEAD ($ 213*) — ENJOINING SALE –

county their petition for injunction, to enLEVY ON HOMESTEAD—PETITION.

A complaint alleged that defendant, hav- join the sale of 16 acres of land described in ing recovered a judgment against complainant's said petition, which they claimed as their husband, caused execution to be levied on cer- homestead; that appellee, J. C. Arnold, had tain land which complainant claimed as her theretofore recovered a judgment in the jushomestead, whereupon their landlord employed attorneys who instituted a suit to enjoin a sale tice's court against said Dick Bailey, and on of the property for that reason, pending which the 2d day of February, 1901, had caused an complainant's husband died, whereupon the execution, sued out on said judgment, to be landlord directed the attorneys no longer to levied on said land and advertised the same prosecute the suit at his expense; and they, for sale; that said land at the time of the without notice to complainant, withdrew from the case entirely, whereupon it was dismissed levy of said execution and at the time of for want of prosecution. The complaint also filing of said petition for injunction was the alleged that defendant knew that complainant's homestead of said Richard and Leah Bailey ; husband was dead but that fact was not known that thereafter, during the pendency of said to the court; that complainant relied on the attorneys to notify her when she was wanted, i suit, to wit, on the 30th of March, 1902, the

sald Dick Bailey died intestate, leaving as his sole heirs at law the said Leah Bailey and her six children, who were named in said petition, some of whom were minors; that on the 3d day of June, 1903, the last day of said term, said case was called for trial, and that the attorneys for said Dick and Leah Bailey announced in open court that they withdrew from said cause; whereupon the court dismissed said cause for want of prosecution; that said attorneys had been employed by Moses, the landlord of Dick and Leah Bailey, who were

negroes, and that he had stated to said at- GRAND TEMPLE AND TABERNACLE IN

STATE OF TEXAS OF KNIGHTS AND
DAUGHTERS OF TABOR OF INTERNA-
TIONAL ORDER OF TWELVE v. JOHN-
SON.

torneys that he did not desire to continue
their employment; that appellant Leah
Bailey knew nothing of this, and that said
Moses had no authority to abandon the pros-
ecution of said case, and did not undertake (Court of Civil Appeals of Texas.
to do so, nor instruct said attorneys so to
do, but simply to withdraw from the case
in so far as his employment of them was
concerned; that the fact that said Dick
Bailey was dead at the time said case was
dismissed was known to appellee Arnold,
but that said fact was not known to the
court; that appellant relied upon said at-
torneys to notify her when she would be
wanted, and that she relied upon the law,
which required that appellee should suggest
the death of said Dick Bailey, and continue
said cause to make his said children par-
ties; that she did not discover that said
case had been dismissed for want of prosecu-
tion until about four months later, when her
home was levied upon and advertised for
sale under said judgment against Dick
Bailey; that she thereupon employed at-
torneys and filed a motion in said court to
set aside said judgment of dismissal; that
she had been appointed administratrix of the
estate of Dick Bailey and said judgment
had never been presented to her for allow
ance; that said land had been set aside to
her by the probate court as her homestead,
and that the same was in fact and had been
her homestead continuously from the time
said judgment was rendered in the justice's
court against said Dick Bailey to the present
time, and that she then was and still is oc-
cupying the same as the head of a family,
to wit, herself and her minor children.

dismissal has not been acted on by the court for a period of eight years." It does not appear why the same has not been sooner acted upon, or that it was the fault of appellant; and we do not think that issue could be raised by demurrer.

For the reasons stated, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

San Antonio. March 26, 1913. Rehearing Denied April 30, 1913.)

1. TRIAL (§ 420*)-WAIVER OF ERROR-DIRECTION OF VERDICT.

Defendant's motion for an instructed ver

dict at the close of plaintiff's evidence is waiv ed by an election to proceed with his case and to present his defense.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. § 420.*]

2. APPEAL AND ERROR (§ 294*)-NECESSITY OF MOTION FOR NEW TRIAL-REVIEW OF SUFFICIENCY OF EVIDENCE.

The sufficiency of the evidence to support the verdict cannot be questioned upon appeal, unless presented to the court below in a motion

for a new trial.

Error, Cent. Dig. §§ 1724, 1725, 1727–1735 ; [Ed. Note.-For other cases, see Appeal and Dec. Dig. § 294.*]

3. APPEAL AND ERROR (§ 302*)-MOTION FOR NEW TRIAL-SUFFICIENCY OF MOTION-SUFFICIENCY OF EVIDENCE,

In an action against a fraternal order for during the initiation of plaintiff, in which it was damages alleged to have been caused by a fall in issue whether plaintiff was being initiated or was only taking the obligation, in which latter of swords, a motion to set aside the verdict for ceremony defendant did not authorize the use plaintiff and grant a new trial, because the undisputed evidence was that plaintiff was being obligated in defendant's order, and that defendant did not authorize the use of swords during that ceremony, and that the verdict against defendant was contrary to the law and the evidence, was not adequate to raise on appeal the case, was sufficient to support the verdict. question whether the evidence, upon the whole

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.*]

4. TRIAL (§ 105*)-OPINION EVIDENCE-FAILURE TO OBJECT.

We are of the opinion that this petition presented a good cause of action, and that the general demurrer to the same was wrongfully sustained. Appellee filed a number of special demurrers all of which were sus-being initiated into defendant's membership, in In an action for injuries received while tained by the court; but it does not follow which defendant answered by general denial that because a special demurrer is right- and special plea that plaintiff was only being fully sustained there is not sufficient left in obligated, conclusions of plaintiff's witnesses to the effect that he "was being initiated," or was the petition to show a good cause of action. "brought there to be initiated," or "was told The so-called special demurrers in this case to come and be initiated," were evidence, where are, for the most part, only general demur- they were admitted without objection, and that theory of the case was fully presented to the jury by the court's general charge.

rers.

[3] One of the special exceptions is that "this petition to set aside the judgment of *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 260-266; Dec. Dig. § 105.*]

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