Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-06-26
CIVIL COURT OF APPEALS.
Full Report Of the Court oil Decisions Rendered
BY Inc Court OF the Second District.

No. 4sG-The st. Louis, Arkansas and
Texas halfway company. In Trxl,s; ap
prlluut vs.. W. g. Henderson, appellee
Appeal from the district court OF rarruni
county.
Appellant, through Its right.ofwOy agents
and appellee entered into u verbal agree
ineit for the purchase on the part " ~.
pellamt OF tile rlghtof-wny for It's railroad
across nppelec's land; lint they Were una
hlc 10 agree upon the Amount OF 'pmnen'
sation 10 be paid for this right, which
resulted In the submission OF this question
to the decision u three nrhltrntors WHO
fixed the amount ~ the dnmnges az S2sh.
A deed was Signed and nclnowituged hy
appellee. but whether It WAS delivered to
appellant was one or the cnuteNcrled Is
sues The damages were assessed ~ tue
pellec upon certain representations made w
behalf Of appellant ms to tho ahghncnt
aud grade OF thr rlNrnau 70 We CONSTRUCTED
and the manner ~ It's proposed eonStruc-
tinn After the money awarded by the
nrhltraturs had been paid To appellee, hut
before the decd had passed heyunh his con-
trol mon discovering that the alignment
aud grade ~ the road had been changed
10 his detrlment, and that u was not being
constructed ms represented aud contrm-
nlatrd when The damages were assessed
and the decd executed, he brought this
suit 10 recover the full amount VI dam-
ages resulting 10 him from tue taking NJ
lila land and from the Incidental Injury IN
the land not taken, growing out OF the man
ncr aud extent OF the actual taking OF The
way was actually constructed, taking more
land than was originally contemplated,
Imposing additional burdens ON the land
NOT taken and deprivlng appellee OF GER
tain privileges In tho waS OF farm cross.
I Ing promised and specified In the aforesaid
the total amount claimed tho S2.250 awarded
hy the nrlitrators. hut alleged tnisreprp-
sentRtlOn mud fraud In the previous trans
| actous and sought to avoid the eject of
the deed and award OF the arhtrators.
LAW
| l. The various exceptions lpicrposed by
| appellant in the cause ot action thus set
court Is assigned rs crrnr our cpnolu.
| sion upon tie several assignments raising
| ILLS question II, that the exceptions We're
/ prnncflv overnled hrcausc tlry We're only
| applicable TO petition seeking to recover
dninugrz for the negligent colistIuc' Ion Of
/ valid title had already been secured. which
| was not the case stated 10y appellee. Fnr
| the same reason the 18Th and 18th assign.
/ menta 0f error. complaining 90 the i'm.
| proper admission ~ testimony, and the
i 18th assignment complaining OF the charge,
| that 10 Improperly instructed the fury Ii
| thu deed aud award were not hltullnc that
] they ulighl assess the damages al tile ar
ference In the value Of the land before and
| after the road was constructed ami con.
| iiuitrd 10 snch special damages MOI m.
| cluded ~ the award, "a were canscd by
negligence md breach Of contract, anus,
be oyerrhed.
?, These conclusions dispose Of al iha
assignments " error found In appellant !
| brief, except the seventh and uinctrrnfh
The seventh Is rs follows; THE court erred
~ giving plantif o Hen upon the pioneri,
| ~ defendant for payment ~ the Judgment
because no lien was set up or claimed by