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any allegation that fraud was used in procuring his signature, and the testimony was immaterial. The testimony was not introduced to attack the partnership. That was admitted by the witness. But, on his cross-examination by appellants, he was shown the contract of partnership, and he was asked if he had signed it, and he said he had, but had not read it. The fact that he signed the paper without reading it having been introduced by appellants, appellee had the right to question him as to the circumstances under which he signed it, and what caused him not to read it. The other assignments of error are directed to the insufficiency of the evidence to support the verdict. The evidence was conflicting, and this court, under such circumstances, is not authorized to reverse on the facts. The judgment is affirmed.
his family with him, the latter being single. They remained in Texas, where the mother died in 1834. In 1835 David left the country, "when the war broke out.” He married in Louisiana. The only other testimony relative to him is that from 1859 to 1863 he was living with his family in Bell county, Tex., where he died in the latter year. The evidence is that none of the other children of Nancy Wright had come to Texas prior to her death, or for many years afterwards. In 1837 James Wright became administrator of Nancy Wright's estate, and applied for and obtained a headright certificate for a league and labor which was issued to said Nancy Wright, by virtue of which the half league and labor in question was located. The defendant Johnson holds by deeds from the heirs of James Wright. Plaintiffs are the heirs of several of the brothers and sisters of James Wright, and among them are the heirs of said David Wright. The age of David Wright when he came to Texas does not appear. These facts are all that are necessary in connection with the conclusions of law by which we dispose of the case.
FERGUSON et al. v. JOHNSON. (Court of Civil Appeals of Texas. Oct. 30,
1895.) GRANT BASED ON RIGHT UNDER MEXICAN LAWSCHANGE OF CITIZENSHIP-EVIDENCE
-PRESUMPTION. 1. After Texas became a republic, it issued a headright certificate, on application of an administrator, to his intestate, who had died in Texas while it was part of Mexico, and who might, as far as her conditions were concerned, have become entitled under the laws of Mexico to a grant from the Mexican government, as head of a family. Held that, in the absence of evidence to the contrary, it would be assumed that the certificate was issued by the republic by virtue of a right to land wbich intestate had under the Mexican laws, and that, therefore, the land acquired by virtue of the certificate would descend according to the laws of Mexico, which forbade aliens to inherit.
2. Evidence that a person born in the United States, of parents who were citizens thereof, came to Texas while it was part of Mexico, with his mother, a widow, in 1831, left there in 1835, was married in Louisiana, and was again living in Texas from 1859 to 1863, does not prove that he became a citizen of Mexico, or require any evidence from defendant to the contrary; plaintiff's right being based on the claim that such person did become a Mexican citizen.
Appeal from district court, McMullen county; M. F. Lowe, Judge.
Action by J. G. Ferguson and others against R. W. Johnson. Judgment for defendant. Plaintiffs appeal. Affirmed.
A. M. Monteith, D. R. Pendleton, and F. H. Burmeister, for appellants. Beasley & Flournoy, for appellee.
Conclusions of Law. A copy or the substance of the certificate under which the land was patented is nowhere indicated in the record. We are therefore without the means of adopting appellants' view that the republic of Texas granted the land on the theory that Nancy Wright was a resident of Texas on March 2, 1836, the date of the declaration of independence. It is uncontradicted that Nancy Wright, then a widow, came from Mississippi to Texas in 1831 with an unmarried son, David Wright, and another son, James Wright, who had his family with him, and that she remained in Texas, and died there in 1834. That the colonization laws of Mexico and her conditions were such as admitted of her becoming entitled to a grant of land from the Mexican government, as head of a family, is clear. Sayles' Early Laws, art. 58; Republic v. Inglish, Dall. Dig. p. 608. That such inchoate rights could, under certain circumstances, be recognized, and developed into a grant from the Republic of Texas, is equally clear. 1 Pasch. Dig. art. 4140; section 10, Gen. Provis. Const. 1836. The case of Hornsby v. Bacon, 20 Tex. 559, was similar to this one. Hornsby, a single man, died in 1835, and a certificate for one-third of a league and a patent were issued by the republic to his heirs. It was held that the heirship was to be determined by the laws anterior to the constitution of the republic, and the plaintiffs having been aliens at the time descent was cast by the death of Hornsby, in 1835, they did not inherit. The court in that case must have assumed that the grant was made by the republic by virtue of a right to the land which Hornsby had under the Mexican laws. It seems to us that, in the absence of any testimony to the contrary, such is the law of
Conclusions of Fact.
JAMES, C. J. The land in controversy was patented to Nancy Wright in 1841. Nancy Wright was a native of North Carolina, where she married. Her husband, Archibald Wright, died in 1816. They had a number of children; among them, sons named James and David Wright. In 1831 Nancy Wright came to Texas from Mississippi, accompanied by her said two sons; the former bringing
this rase. The certificate and patent to the plaintiffs to prove that he acquired capacity land in question were to Nancy Wright, who to inherit. had died in 1834; and unless there is evi- Appellants assert that, inasmuch as there dence to negative the presumption that it was was a grant of land to Nancy Wright as the issued in conformity with law,—that is to head of a family, her son David being the say, by virtue of a right she had acquired, - other constituent of the family, the latter the jury would not have been justified in would be entitled to an undivided half therefinding that it was granted on the ground of in his own right; citing Sayles' Real-Esthat she was a resident of Texas on March tate Laws Tex. art. 58, and cases cited, 2, 1836. A palpable fraud would have been which we find neither support nor bear on practiced to secure the patent on the ground the proposition, and in our opinion it is withlast stated, which cannot be presumed, and out merit. which it certainly would be improper to pre- It follows from what precedes that the versume if there might have been a state of dict was the only correct one that could have facts upon which it could have issued law- been rendered. This conclusion dispenses fully. Under the testimony, and the author- with our considering the other alleged errors, ity of the opinion in Hornsby v. Bacon, we which are rendered immaterial. The judghold that so far as the verdict is in conform- ment is affirmed. ity with the principle that descent was cast
On Rehearing. as of the date of Nancy Wright's death, and that her descendants, who were aliens at that
(Dec. 11, 1895.) time, did not inherit from her, it is correct.
In reference to the point made in the first Yates v. Iams, 10 Tex. 168; Blythe v. East
paragraph of the motion for rehearing,-that, erling, 20 Tex. 565. It was not material to Nancy Wright being entitled to but one consider the status of James Wright, as to league of land from the Mexican governhis capacity to inherit, as defendant held un
ment, the grant by the republic to her of a der him; but it was a material inquiry wheth- league and labor conclusively shows that the er or not any of the plaintiffs or their ances- latter grant had no reference to her right actors inherited from Nancy Wright, inasmuch quired under the colonization laws of Mexico, as it was necessary for them, or some of
-we are of opinion that such fact does not them, to affirmatively show title, in order to
justify the conclusion contended for.
Her warrant a recovery. Appellants contend that right as a colonist in Mexico was to a headthere was evidence sufficient to prove that right, as the head of a family, and the grant David Wright, under whom some of the
by the republic was for such a headright, plaintiffs claim, was not an alien at the time
and it was natural for the certificate to be for of his mother's death. He was born in the
the quantity of land it allowed in such cases. United States, of parents who were citizens The fact mentioned does not, in our opinion, of that country, and came to Texas with his affect the applicability of the rule in Hornsby mother in 1831. He left Texas in 1835. He
v. Bacon. The motion will be overruled. married in Louisiana; the date not being given, but presumably after he left Mexico, in 1835. This is substantially all that the record states on the subject. To our mind,
OLIVE et al. v. SABINE & E. T. RY. C0.1 this testimony was not sufficient to prove
(Court of Civil Appeals of Texas. Oct. 31, that his status had been changed from that
1895.) of a foreigner to that of a person domiciliated in, or a citizen of, Mexico. Holliman v.
RAILWAY COMPANIES — Right OF WAY- DESCRIP
TION-SUFFICIENCY_OF-CONSTRUCTION-RIGATS Peebles, 1 Tex. 673; Clay v. Clay, 26 Tex. OF OWNER OF FEE THEREIN-INCONSISTENT USE 24; Sayles' Early Laws, art. 116, 88 6, 7; -IMPROVEMENTS-LANDLORD AND TENANT. Id. art. 47, § 3; Yates v. Iams, supra.
1. After the construction by a railway comThe next question to be disposed of is
pany of its railway tracks across land, a conwhether or not it devolved on the defendant
veyance to the company by the landowner of
a “right of way” across the land, without furto show that David Wright had not taken the
ther description, is not void for uncertainty. steps necessary to constitute him a person 2. A conveyance of a "right of way 200 domiciliated in, or a citizen of, Mexico. In
feet wide" over a certain tract conveys to the
grantee the privilege of putting all parts of the other words, can it be inferred from his resi
strip 200 feet wide to all uses for which a right dence there with his mother for the period of of way may be employed. four years, at the end of which time, after 3. Where a right of way of a certain width her death, he abandoned the country, that
is conveyed to a railway company, the owner
of the fee may put the land to all uses consisthis original citizenship, or status of foreigner, ent with the exercise by the company of its had been changed to citizenship in that coun- rights and performance of its duties. try? We think not. His mere residence
4. The erection of buildings on land, over
which a right of way has been conveyed to a there was as consistent with the relation of a
railway company, by the owner in fee, is inconforeigner as that of a citizen. The evidence sistent with the rights of the company, though seems to allow of but one reasonable con
it has no specific use to which it expects to put
the ground. clusion, viz. that he was and remained an
5. In a suit by a railway company to comalien. Where it appeared that he was a foreigner on arrival, it was incumbent on 1 Rehearing denied.
pel the removal of structures from its right of lessees might locate, build, and maintain a way, the defendants cannot recover the value sawmill and other buildings necessary for of the improvements as possessors in good faith.
the transaction of a lumber-milling business 6. A lessor, during the lease, conveyed a on said tract of land. Said lessees went inright of way across the land to a railway com- to immediate possession of said land under pany. The lessee erected buildings on the right
said lease, erecting improvements thereon, of way of the company, and afterwards, before the expiration of the lease, purchased the land. and they and their successors have remained Held that, after the expiration of the lease, the in possession of said tract of land ever since title of the company to the right of way was said time. superior to that of the lessee, and therefore it might compel the removal of the buildings.
“(3) On the 29th day of March, 1884, ap
pellee obtained from the East Texas Land Appeal from district court, Hardin county; Company a deed, conveying to it, for the L. B. Hightower, Judge.
purpose of constructing, operating, and mainAction by the Sabine & East Texas Rail
taining its railroad, the right of way, 200 way Company against Olive, Sternenberg &
feet in width, over and upon, among other Co. There was a judgment for plaintiff, and
surveys, said James Pearson survey. defendants appeal. Affirmed.
“(4) On the 22d day of September, 1887, beP. A. Work and Hume & Kleberg, for ap- fore the expiration of their said lease, Olive pellants. Baker, Botts, Baker & Lovett and & Sternenberg purchased by warranty deed Votaw & Chester, for appellee.
the fee of said Pearson survey from the
East Texas Land & Improvement Company, WILLIAMS, J. This suit, as originally in- | the immediate vendee of the East Texas stituted, was, in form, an action of trespass Land Company, of which last-named compato try title, by appellee, to recover of appel- ny they had theretofore, November 3, 1881, lants its right of way across the James Pear
leased said land; said deed conveying all of son tract of land, in which it was alleged the James Pearson tract of land to Olive & that appellants had entered upon such right Sternenberg, saving and excepting the right of way, and ousted plaintiff therefrom. Ap- of way conveyed to appellee by said deed of pellants, in their answer, claimed, in sub- March 29, 1884. stance, that they were the owners of the fee- "(5) December 7, 1889, appellants, Olive, simple title to the Pearson tract, and were Sternenberg & Co., succeeded Olive & Sternmaking only such use of the land included enberg in the ownership and possession of within appellee's right of way as they were all the land, buildings, and improvements, entitled to make as such owners. They set and rights and privileges in controversy in out in detail the facts, showing the character this suit. of their use of the land, and the structures "(6) From November 3, 1881, until the 22d and improvements which they had made up- day of September, 1887, Olive & Sternenberg on it. The latter are more fully stated be
erected on said Pearson survey, within 100 low. Appellee thereupon filed additional feet of the center of each side of plaintiff's pleadings, contesting the right of appellants roadbed and railway track, the following to maintain upon its right of way the struc- buildings and structures: One grain house; tures and improvements described in the an- part of planing-mill building, 200 feet in swer, and claiming that such use of the land length; a mill business office, with cistern by the owner of the fee was inconsistent and shed therefor; a storehouse; a retail with its enjoyment of its right of way over liquor house; one drugstore and physician's the land, and asked for judgment requiring office, combined; one-half dwelling house; a appellants to remove such structures. Ap- half, each, of three other dwelling houses; pellants, by their pleadings, asked for com- one-fourth of another dwelling house; and pensation for the value of the improvements a portion of a fifth dwelling house,-i. e. a in case they were required to remove them, portion of said last-named structures being alleging that they had been made in good within the said 100 feet, and the balance faith.
thereof being outside thereof. After said The facts upon which the decision turns 22d day of September, 1887, up to the 7th are sufficiently stated in the pleadings, and day of December, 1889, Olive & Sternenberg shown by the evidence, and, as stated by placed the following structures, and planted counsel for appellants, are as follows:
the following trees and vines, within said “(1) In 1881 appellee entered upon the 100 feet: One residence; the front gallery James Pearson 160-acre tract of land, in and corner of a second residence; an elevatHardin county, Texas, and constructed its ed water tank, and pipes and hydrants conroadbed and railway track thereon, and nected therewith; barber shop; feed house; across the same, and has ever since that time 6 peach trees, 6 apple trees, 30 plum trees, 47 continuously and openly used and operated fig trees, 158 pear trees, and 530 grapevines. the same.
After said date, and up to the time of the “(2) Thereafter, on November 3, 1881, Olive institution of this suit, appellants, Olive, & Sternenberg leased, for a period of 10 Sternenberg & Co., owned, besides the propyears, from the then owner in fee, the East erty hereinbefore described, situated within Texas Land Company, the said James Pear- | 100 feet on each side of the center of appelson siirvey. The lease provided that the 1 lee's railroad track, the following property:
A switch or a side track, extending from from the structures mentioned in paragraph plaintiff's said track to, along, and parallel 7 of the above statement and for costs. with the grain warehouse and sawmill of The leading contention of appellants is that appellants; a switch or a side track, extend neither the pleadings nor evidence stated a ing from plaintiff's said railroad track to, case in which appellee, as the owner of the along, and parallel with the planing mill and easement of a right of way, had a right to dry kiln belonging to appellants; a road, laid the relief sought against them as the owners with cross-ties and iron rails, and known as of the fee. We find it unnecessary to disthe "dolly way”; a logging railroad, which cuss, separately, the pleadings and the evias also said dolly way-was constructed and
dence. The facts upon which we base our run at right angles with plaintiff's railroad decision appear from both, all of the alleged track, and across the same, and extending on facts being proven and vice versa, so far as each side for more than 100 feet from the they are considered essential to a decision. center of plaintiff's railroad track.
It is claimed that the deed to the right of “(7) During the trial of the cause appellee way was void because of the indefiniteness limited its action to a prayer for a decree re of the description. The road, at the date quiring appellants to immediately remove
of the deed, had been located across the Pearfrom the limit of its alleged right of way the son survey, and was a thing in existence. following structures: One grain house; part The conveyance of the "right of way" eviof planing mill; a mill business office, with dently had reference to the road, as it excistern and shed therefor; a storehouse and isted, and conveyed the right to occupy a retail liquor house; one drug store and phy strip of land 200 feet wide along its line. sician's office, combined, and also portions But, had the situation been otherwise, the of the following structures: One-half of deed was sufficient, and would have authorthree dwelling houses, one-half of another ized the railway company to cross the land dwelling house, a portion of another dwell with its road, selecting its own route. The ing house, the front gallery and the corner of easement conveyed is the right of way, 200 a residence; also, one other dwelling house, feet wide, across the James Pearson survey, a residence, a house used as a barber shop, and it is contended that this entitled the comand a feed house used for the storing of pany to occupy and use, for its purposes, not forage. Appellee's prayer for the removal necessarily all of the strip 200 feet wide, but of the other structures hereinbefore de only so much thereof as was essential to the scribed, and of the trees and fences, was by purposes for which the right was obtained, it finally withdrawn.
i. e. a convenient passage across the land, “(8) Appellee's railroad has been operated, and a proper performance of its duties by with the aforesaid structures and trees upon the company. But the conveyance is of a its right of way, for some 12 years. No spe right of way 200 feet wide over a larger cific or needful public use by appellee of the tract, and not simply a right of way over a ground occupied by appellants' improve strip of land 200 feet wide. The grant dements was shown. Appellee's train master fines the extent of the right of way, and the testified that, in his opinion, the trees, fen court cannot restrict it to narrower limits, ces, and structures of appellants tended to though it should be of the opinion that so increase the dangers of fire by sparks from much was not needed for the purposes inthe engines, and liability of killing stock at tended. The right of the railway company, said place, but admitted, upon cross-exam such as it is, is, as between it and its grantor, ination, that, so far as he knew, there had the same over every part of the land desnever been a fire at said place, and that he ignated in the grant; and it is so because did not know that any stock was ever killed the parties by the deed have made it so. The there.
case differs from those on which counsel "(9) Appellants' structures have not inter for appellants rely. Johnson v. Kinnicutt, 2 fered with the expeditious handling of appel Cush. 153; Graftin v. Moir (Sup.) 1 N. Y. lee's freight and passenger traffic, and it has Supp. 4; Id., 130 N. Y. 465, 29 N. E. 974. in no way been inconvenienced by the pres In both of those cases the easement granted ence of said structures upon its right of way, was a right of way of an undefined width except as may appear from the evidence over a strip of land, and not a right of way above stated. Testimony showing that the of a specified width over a larger tract, and buildings and structures had been placed on both decisions were made to turn upon the said alleged right of way with the consent descriptive language of the grant. In the and acquiescence of the appellee, as well as former case, Chief Justice Shaw said: "This testimony offered by the appellants to show question must depend upon a just constructhe value of said improvements, was, upon
tion of the terms of the grant. The grantors objection of appellee, excluded, as appears owned both estates in fee, and they could from the bills of exception in the record.” grant a more or less restricted right, by way
The case was tried before a jury, and ver of covenant, as they should think proper." dict was returned for plaintiff, on which the In the latter case, the court of appeals said: court gave judgment for plaintiff for the “When the right of way is not bounded in recovery of the right of way, as described, the grant, the law bounds it by the line of and requiring defendants to remove there reasonable enjoyment.” Hence, the convey
ance of the right of way, as between the the owner, is, in fact, irreconcilable with the grantor and the grantee, in the deed here in right vested in the railway company, the latquestion, conferred upon the railway compa- ter must prevail. So the question is whethny the privilege of putting any and all parts er or not the use made of the right of way of the strip 200 feet wide to all uses for by the owner of the fee, in this case, is such which a right of way may be employed, un- as is inconsistent with the rights of the railder the law of this state, in the construction, way company. As we have seen, the commaintenance, and operation of a railway. pany's rights extend to every part of the But the title to the fee remained in the gran- strip described in the deed. It has the right, tor, and his right to enjoy the property was at all times and places, to have such access impaired only to the extent necessary to the to and use of the land as is necessary to enfull exercise by the grantee of the rights ac- able it to perform any duty or accomplish quired by it under the conveyance. And any end which the law requires or permits it here a conflict of opinion has arisen among to perform or accomplish upon the right of the courts as to the correlative rights of the way. The uses to which it may put its right owner of the fee and the owner of the right, of way include the building of side tracks, --some holding, as matter of law, that the buildings, telegraph lines, and other strucnature of the use of the right of way, essen- tures necessary for its business, the making tial in the operation of a railway, is such as of cuts and embankments, taking material to necessitate the entire possession and con- for its necessary building purposes, the introl of the soil, burdened with the right, closure of its track with fences, and the and to exclude the owner of the fee from any keeping of its premises in proper and safe concurrent use or enjoyment of it whatever; condition for the prosecution of its business, and others holding that, while the right of and the protection of others from injuries to the company is the paramount one, and the result from any of its omissions. Hence, a owner cannot impede its full exercise, or put possession taken or use made by the owner the land to uses inconsistent with its full of the fee of a portion of the land, over exercise, still it is not of such a nature as to which these rights extend, which, necessariprevent the use of the land by the owner ly, during its continuance, excludes the ownfor any purpose at all. In other words, that er of the right of way from any use of or some uses by the owner are consistent with access to the portion so held or used, would the full exercise by the railway company of be an invasion of the right of the latter. It all its rights and the accomplishment of all cannot be held that the exclusive possession its ends. The latter view is the one general- of a portion of the land charged with the ly held, and has been expressed in a num- easement, by the owner of the fee, is conber of opinions in this state. Lumber Co. V. sistent with the right of the person entitled Harris, 77 Tex. 22, 13 S. W. 453; Lyon v.
to the easement to put the land to such uses McDonald, 78 Tex. 71, 14 S. W. 261; Muhle as those mentioned. From the pleadings and v. Railway Co., 86 Tex. 459, 25 S. W. 607. evidence, it appears that appellants occupy
Counsel for appellee urge that the cases parts of the right of way of appellee with referred to have not definitely settled the buildings, which necessarily exclude appellee question in this state, and insist that the law from any use whatever of the ground on is correctly laid down in the line of decisions which they stand, and it is only structures first mentioned. But, if the question is to be of this character that are, by the judgment, viewed as an open one, it seems to us that required to be removed. It is no answer to those decisions are incorrect, because they say that appellee has shown no specific use are based upon an incorrect assumption of a to which it expects to put the ground. The fact. Common observation teaches us that uses to which it is entitled to devote it are the owner of the fee may use the land for those of a right of way. Those uses require some purposes without interfering with the that it should at all times have access to operation of the road, and without hindering every part of the ground, and, while they the company in the exercise of any right. may be consistent with some use of the land The right to fence the right of way, given by the owner of the fee, they are not conby statute, and the duty to keep it free from sistent with such uses as those made in this nuisances, combustible material, and tne case. The right asserted by appellants is like, as declared by the courts, may not con- necessarily irreconcilable with the right of flict with the use of the land by the owner the appellee. The opinion in the case of for some purposes. The track may not be Muhle v. Railway Co., supra, does not confenced at any place, and cannot be fenced at flict with this view. There the land was all places. Combustible material and nox- condemned for the purposes of a depot, but ious matter may be kept off the right of the company had never taken any steps to way, and still the owner need not, neces- appropriate it to such uses, and was not, sarily, be excluded from all use of it, at all when the issue arose, using its easement. times and places. And a particular use of Here the road was built upon the land, and the land by the owner may not obstruct or the company was in the full exercise of its hinder the exercise of any right or the per- right to the easement, and was, hence, enformance of any duty. But if, in any in- titled to have the land kept free from any stance, the right to use the land, claimed by such permanent structures as those main