Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 398
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398 HAYS V. T. & P. R'Y Co. [Tyler Term,
Opinion of the court.
4. SAME-- SUMMIARY STATUTORY REMEDY.- Even where the statute provides
a summary remedy by which lands can be condemned to the use of a railway
company and damages assessed to the owner, such remedy does not interfere
with the owner's right to an action of trespass to try title, where the
railway company occupies the land without resorting to the statutory
method of condemning it.
5. SAME- CASES CITED.--R. R. Co. v. Ferris, 26 Tex., 588; R. R. Co. v. Pfeuffer,
56 Tex., 66; R. R. Co. v. Benitos, 59 Tex., 326; Armstrong v. St. Louis, 69
Mo., 309; Graham v. R. R. Co., 27 Ind., 260; Strong v. Brooklyn, 68 N. Y.,
1, cited.
6. NOTICE TO PURCHASER-LIMITATION.--That a railway company as a trespasser
occupied the land long before plaintiff purchased will not affect his
right to sue, nor will naked possession of the right of way over the land for
ten years bar his recovery.
APPEAL from Wood. Tried below before the Hon. Felix J. McCord.This was an action of trespass to try title and for damages,
brought by C. S. IHays against the railway company, to recover
land described in appellant's petition, and $100 as damages. The
action was in the usual form; the petition alleged possession and
ownership in fee simple of the land, and the unlawful entry, ejectment
of plaintiff, and the withholding from possession on part of
defendant. The railway company answered by general demurrer,
plea of rot guilty, and set up statute of limitations for ten years.
Judgment was rendered by the district court in favor of the company.HIart &Q Buehanan, for appellant, cited: 26 Tex., 588; 56 Tex.,
74; 14 Amer. Rep., 492; 14 Am. & Eng. R. R. Cases, 309-15; R. R.
v. Benitos, 59 Tex., 326; Pasch. Dig., art. 4922; State Const. 1869,
art. 1, sec. 14; R. S., art. 4205.
No briefs on file for appellee.
WILLIE, CHIEF JUSTICE.- This cause was submitted to the judge
below upon the law and the facts, and he has placed upon record his
reasons for the judgment rendered by him. The court found that,
because the appellee claimed only a right of way over the land in
controversy at the time it was purchased by Hays, as also at the time
the suit was commenced, the action of trespass to try title could not
be maintained. The reasons which led the court to this conclusion
seem to be, that a mere claim to the right of way over the land did
not interfere with the title of Hays or his vendor, and was not such
an act of ownership as would authorize this kind of suit. The couit
was further of opinion that the title of the property not being in the.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/420/: accessed May 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .