Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-05-09
SUPREME COURT.
Synopsis of Decisions Rendered at the
Austin Sitting Of the su-
preme court,
Made Up From the Full and Official Re.
port Of the Rulings and 0pin-
ions Rendered,
The EDjoinder Suit Of the T. 4 F
Railway VS.. the ROsedsls Street
Railway Affirmed.

Texas " Pacific Railway Company
VS.. the Rosedale Street Railway Com
pany, from Tarrant county. This was
q suit by appellant to perpetualiy en-
J In the appelle, from constructing its
track scr,ss the yard sidines and
track OF the former, and operating its
cars thereon in the city OF Fort Worth,
at point where IL Is claimed by the
appellee that the yard, sidings and
track of the appellant Is crossed by
Jennings avenue, pubic street. On
trial the preliminary Injunction was
dissolved and the suit dismissed. The
real, contested issue OF fact In this case
was whether the Jennings avenue was
q public street, and crossing the yard
Of the appellant at the point claimed
by appellee Upon that issue the evil
dence as disclosed by the record was
full, and fully authorized the court to
hold that jennings avenue was
q public street in tie city of Fort
Worth, and that IL extended
Dcross the yard, sldings and track of
the appellant a. the point claimed by
the appellee. Under the state of case
developed by the evidence, the appel
liant contends that as the fe to the
land constituting the yard was in it,
the constructing, maintaining and
operating the street car line would
constitute such additional taking or
damage 10 the land as would require
the right of way therefor TO be con.
demned, by the exercise of the right of
pmipent domain. In large numbsr
Of cases, including l25 Mass. 5l5; q
Wis 1875; 70 Ind 26S. and IA Ohio
Isl 523 the doctrine has been asserted
hat the construction and operation of
horse railway. on the public
streets OF city, by au-
thority from the city government,
is not such new or additional burden
imposed upon the hand as would en-
title the owner OF the fee to compen.
sa ion therefor, or that it would
amount to such taking or damage as
would require condemnation OF the
right of way. This doctrine, IA OPP
pos to the contrary one announced
in 80 n Y by divided court, is the
correct one. But IL is commended that,
by reason OF the peculiar wording of
our constitution. foreign authorities
can have no weight in this state. The
provision referred to as follows; No
PERSONS property shsil be taken, dem
aged or destroyed for or spilled to,
public use, without adequate compeu-
sation beiug made. The position is not
we'll taken. With US, tie CT J author
ities have the power TO consent
that the streets Of the city may be used
TO reasonable extent by sJreet.rail-
way lines. Const., Art. 10 Sec. z. II
is further cOmplsined that the opera
ton OF the proposed street car line will
greatly inconvenience the appellant in
the use of lite sidipgs etc The objec-
ton is not tenable; Jennings avenue
is public street, running ACROSS the
yards Of the appellant, and constantly
used by the public ~ such, in and by
ali the usual and ordinary means of
C annoyance. On this subject note the
comments II this court In go Tex,
la. Affirmed.
Robert ,on, by guardian VS.. Coates ct
AL, from McLeunRn county It Is
now we'll settled that when 1t become,
necess ry to revive a Judgment, all of
the defendants must be made parties,
and if any Of them have died, their
repr-een atives must he joined. QS
Tex 544; "A Tex S5S And when
the Dues ion OF lille is involved, II the
defen dant has transferred the
property, his vendee must also be
Joined ia the scire facies. 40 Tex %
But when the original defendant Is
s Ill living IL is not necessary 10 make
his vendees parties TO the proceedings
to revive. g Rawie., 278.) The only
known circumference upon the land in
this case WAS the mortgage given by
+ w. r., but In this instrument the
mort gAgor reserved the right 10 sell for
the purpose OF discharging his liability.
But Tor such reservation, the pur-
chaser must have taken the land at
his peril, because he would be bound
to know that The mortgage might be
foreclosed. IL is contended that the
decree OF foreclosure in this case, re-
yoked RS right 10 cell what the mort
gage reserved. Even If 90, the case is
not met, since as the right TO sell was
of record in the county whers the land
law. the revocation OF the same should
aIso have been there recorded. Az
firmed.
Delk ct al. VS.. Punshard Ell al from
Hill county. See 80 Tex, 1906, tr
former report OF this case, wherein II
was correctly held that the agreement
of April, 1860, waving mil Under OF
parties plaintiff and causes OF acton
Is binding not only upon the original
parties, but upon all who purchased OF
them pendiu 2 suit, and who have since
made themselves parties. The agree
ment was properly admitted in evil
denee. 1t IL assigned Rs error that the
court erred in admitting the certified
transcript from Austin county court
showing the grant OF letters OF admin
istration upon the estate of j. ii Pun
ohard, deceased, and the PARTITION OF
the Punehsed grant OF land among the
heirs The administration was
opened In March, 1885. when all pro
ceedings relating TO SUGGESTIONS were
regulated by the Louisiana laws in