The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-11-23
COURT OF APPEALS.
Synopsis of q Decision of General Interest
and Importance.

and Importance.
Gulf, Colorado & Santa Fe Railroad com
pany VS.. Myra' Graves; appeal from Wash
inston county. This is suit brought in
the county court of Washington county b.
the appellee, Myra Graves, against the APP
pellant, the Gulf, Colorado and Santa FL
Railroad company, 70, damages done to 8
certain lot owned by her, situated in the
town Of Brenham, Washington county, and
AUDITING upon public street of said town
known as West street. The damage COM
planned of is alleged to arise from the OBJ.
struction and destruction of said West
street, by the road-bed of appellant. Yer
dict and Judgment were rendered for the
appellee for the sum of $500 and cost.
Preliminary to other questions in the case
is the suggestion OF appellant that the
county court had no jurisdiction Of the
subject matter of the suit, because it neces-
sarily involved title to land. We do not so
understand the nature of the suit. 1t is
not suit for the recovery OF land" but a
suit for damages for the interruption and
destruction of an easement. Although this
easement depends upon plaintiffs title to
the lot which she claims to have been dam
aged, and although it is appurtenant to
and goes with the land, and is an interest
in the land, yet the object OF this suit is not
to recover the land or the easement, but to
recover damages done to the land by the
impairment OF the easement appurtenaut
| thereto.
The jurisdiction of the county court is
only denied where the suit is for the recov-
cry cry, of W. lane, Revised Statutes ntss
daG we thiHG the tbo s STaaty
| taly har 4 nc
entitle her to recover for any damages done
thereto 1t is contended by appellant that
| the charge asked and refused, and which
| is above quoted, is tile law of the case, and
should have been given to the jury. In
support of this position counsel Tor appel
liant cites us to numerous authorities,
which we have examined as far as the same
have been accessible to us. The position
assumed, we understand to be, that II the
whole Of the street was not appropriated
by the appellant, but only a part
thereof, and reasonable portion was
left open to ordinary travel by other
modes, then the appellee could not COM
plain. That this position is well supported
by the authorities cited We do not deny.
In the Houstan q Texas Central railroad
company vs.. 0dem, SO Texas, 343, the court
says: TIf the use Of a street by a railroad
would necessarily defeat the purpose OF its
designation, and in fact amount to its de-
struction as a street, we are not prepared to
say, Jet tho FEC DC Where IL may, that the
owner of abutting lots might not claim the
constitutional potection. That adjoining
lot owners have rights in dedicated pub
lie squares beyond legislative control,
case of Lamar county VS.. Clements; rae
Texas, 1851 The use of a street by a rail-
road, however, is not ordinarily inconsist.
ent with the contisued use for the common
purpose of street. The authorities are
numerous and conclusive, that such an adj
dition to the use Of street, the fee being
in the public If authorized by the legisla'
ture, gives the lot owner no right TO COM
pensation, although bis easement in the
street be thereby partially impaired and his
lots rendered less valuable. The regulation
or enlargement Of the use Of the street, the
property of the state by the matter OF the
suit.
Upon The trial Of the case the plaintiff
established By evidence the material allega-
tons in her petition, viz; l. Her ownership
of the lot. 2. That IL abutted upon West
street, which was public street, and had
been used a. such for more than twenty
years. 3. That prior 20 the construction Of
appellants rOad-bed along said street. il
was an open uobstructed highway, used as
such by the public, and afforded iagress
and egress to and from her lot. 4. That APP
street, and thereby Obstructed the same to
such an extent as 20 render Il unfit for the
ordinary uses Of a street. and 90 as 10 pre-.
vent free ingress 10 and from her lot. g.
That Immediately prior 10 the construction
Of tie road-bed her lot and premises were
worth 81 600. and that immediately subse-
qaent Thereto the same were not worth
more than $500 Or $50, and that this
decrease in veluc was CcrasiOned BY The
obstruction 81 west street where her Dot
abutted upon Il.
Aupelisnf asked the court 70 charge ne
fli6Ws. III Won believe. from the evil
deDce. thnt the defendant constructed its
raiiway along said street. within the
limits defu1d ~ The ordinances u the city.
and fhat tie cI1struc-ion was not uiade iu
q neg ig-ut. careless or improper manner.
That The whole Of the street has not been
but q reasonable portion
Thereof left open 20 Ordinary trsrel b. other
NODES. then the defendant IL not liable %
the action, ard you VII find q verdict for
The c0uri refused 10 give this
charge bit instructed The iury to The elect
thar the plaintiff hsd an easement In the
street, The destruction q which vas
legislative. il not q taking o. property
within the meauinc Of DE constitution d
l4r aifh0ueh tie LOT owner maT thereby
suf.r incidental ~ consequential iucUn-
reuience or injury Il j. % Be noted that
tlis decision Uas rnadt With re.rrence 70 n >
Constitution q l-f4. uilia provided q
no rerso1's property shall bs taken =
Piled 10 public Ne without iust ~
fion made. etc fCy1rf 800. b
section H." 9e1ti1r II - -
ri rights rI-c-ffes that no.
s-1V sha1 - rsken. -
frCyed fU. q
r. ne rithrut sd
t.rirr made. &c. II
rlnnre that thsre