
    QUANAH, A. & P. RY. CO. v. COLLETT.
    (No. 1086.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 3, 1917.)
    1. Eminent Domain @=3262(2) — Parties Entitled to Allege Error — Estoppel—Con-demnation.
    Where a railroad against which an action to recover land was brought pleaded ownership of its right of way across the land, and by a separate paragraph alleged that it had constructed its railroad across the land and prayed a condemnation of a right of way therefor, as it was permitted to do by Yernon’s Sayles’ Ann. Civ. St. 1914, art. 6531, which provided that the plea for condemnation should be an admission of plaintiff’s title to the property, and the railroad appealed from the award of damages, but did not question the judgment of condemnation , it is estopped to raise on that appeal questions affecting its original claim of title to the property.
    ' [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 682; Dec. Dig. @=3262(2).]
    2. Limitation of Actions @=>32(2) — Injuring Property Without Compensation-Damages.
    The two-year statute of limitation, though it may bar recovery for the negligent construction of a railroad across plaintiff’s land, does not bar recovery in condemnation proceedings of the incidental damages to plaintiff’s land not taken caused by the proper construction of the railroad along the right of way condemned.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 143; Dec. Dig. @=> 32(2); Eminent Domain, Cent. Dig. § 783.]
    3. Eminent Domain @=>307(2) — Compensation — Damages—Evidence.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6521, providing that in estimating either the injuries or the benefits in condemnation those sustained by the owner in common with the community generally, and not peculiar to-him, shall be excluded, evidence that the land was of more value after the railroad was constructed than it was before, without evidence that the increase in value was due to particular benefits received by that land, does not show that plaintiff is not entitled to recover compensation for damages to the part of the land not taken, but, at most, makes that a question for the jury.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 823; Dee. Dig. @=>307(2).]
    4. Eminent Domain @=>224 — Newly Discovered Evidence — New Trial.
    In an action against a railroad company to recover land, where defendant claimed title, and also asked for condemnation under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6531, which provides that the plea for condemnation is an admission of plaintiff’s title, defendant cannot, after a judgment of condemnation, secure a new trial on newly discovered evidence as to his title.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 574-579; Dec. Dig. @=> 224.]
    Appeal from District Court, Motley County; Jo A. P. Dickson, Judge.
    Action by J. C. Collett against the Quanah, Acme & Pacific Railway Company to recover possession of land, in which defendant asked for a condemnation of a right of way across the land. Judgment for plaintiff, but awarding condemnation and assessing the damages, and defendant appeals.
    Affirmed.
    D. E. Decker and J. A. Clarke, both of Quanah, and G-. E. Hamilton, of Matador, for appellant. T. T. B.ouldin, of Matador, for ap-pellee.
   HENDRICKS, J.

The appellee, J. C. Col-lett, sought to recover of the appellant, Quanah, Acme & Pacific Railway Company, the title and possession of a certain section of land situated in Motley county, Tex.

The defendant railway company disclaimed as to all of the land described in plaintiff’s petition, except 200 feet of right of way through said survey, amounting to 12.8 acres; and, after specially answering, under separate paragraphs, that it was entitled to the land on account of certain agreements and estoppels, the railway company, in re-convention, pleaded that it had constructed a line of railway across plaintiff’s land (but with his consent), and that said right of way is necessary to its business as a common carrier, praying tor a. condemnation of a right of way, and that tiie court assess plaintiff’s damages therefor.

Article' 6531, Yernon’s Sayles’ Civil Statutes, provides:

“When any railroad company is sued for any property occupied by it for railroad purposes, or for damages thereto, the court in which such suit is pending -may determine all matters in dispute between the parties, including the condemnation of the property, upon petition or cross bill asking such remedy by defendant, but the plea for condemnation shall be an admission of the plaintiff’s title to such property.”

Before the passage of this article in 1889 the district court had no jurisdiction on the application of a railway company, by cross-action or otherwise, to change plaintiff’s suit to one of condemnation for the land. Such a corporation in the exercise of the right pri- or to said statute could only obtain a condemnation in a manner pointed out by the particular statutes giving the power and prescribing the methods and adjudicating the rights in the county court. Railway Co. v. Poindexter, 70 Tex. 98, 7 S. W. 316. The statute was evidently enacted to give railroad companies such a right, but in providing the remedy furthering it attached the condition that the “plea for condemnation shall be an admission of the plaintiff’s title to such property.” The appellant railway company is in the attitude of pleading an agreement of donation of the right of way, also estoppel and acquiescence, and at the same time seeking to condemn the property, in which event the statute requires it to admit plaintiff’s title.

In this case the damages were awarded, and while there may be questions arising upon the evidence, or otherwise mooted, as to the correctness of the damages, however, as to the question of title, the district court in its judgment having condemned the land, and there being no complaint in that respect by the defendant, nor attempted rejection of said judgment in this court, but an evident acquiescence and election with reference to the same, we think the defendant is estopped to raise in this court questions affecting any other claim of right affecting the title to the property interposed by it. Railway Co. v. Johnson, 156 S. W. 259, par. 12; Vance v. Railway Co., 173 S. W. 265; Railway Co. v. Kinkead, 60 S. W. 468.

The first, second, and third assignments of error, as to the question of damages, assert that the record discloses that that part of -the suit for same was barred by the two-year statute of limitation. That question also arose in the cases of Chicago, Rock Island & Gulf Railway Co. v. Johnson, and Railway Co. v. Kinkead, supra, in-which the Supreme Court denied( writs of error. Following the case of Railway Co. v. Cave, 80 Tex. 137, 15 S. W. 786, it was held that the statute of two or four year limitation did not apply to the right of the owner of compensation for damages to the remainder of the land, when in reconvention in trespass to try title the railroad sought condemnation. .Justice Stayton had said in the case of Railway Co. v. Cave, supra;

“It might as well be held that plaintiff was barred from recovering damages for the condemnation of the right of way itself by reason of a former occupancy not sufficient to confer the right as to hold that he is barred from recovering for injury to land not actually condemned, but made less valuable by the condemnation of the right of way; for the one element of damages as well as the other enters into the compensation to be paid for the taking, and neither can be barred so long as the land has not in some lawful manner been burdened with the easement.”

Cases applying a shorter statute of limitations, where the damages arose either from negligence or unskillfulness in the construction or operation of the road, do not apply. The case of Railway Co. v. Henderson, 86 Tex. 308, and particularly page 313, 24 S. W. 381, discloses the difference between damages accruing under the Constitution for the taking or appropriation of private property for. public use and other damages arising on account of either the negligent construction or operation .of the railroad. The land belongs to the owner until paid for under the Constitution, and the compensation is the whole damages, including the value of the land taken, as well as the damages to the remainder of the land. Railway Co. v. Henderson, supra, p. 313.

The fifth assignment of error raises the question that the judgment and verdict are contrary to the evidence, in “that the land not taken was of greater value after the construction of the railway than prior thereto.” We assume that appellant means that in estimating fhe compensation or the damages to the remainder of the tract the testimony shows such a deduction of benefits peculiar to the land not taken as to offset,, or more than offset, one against the other.

Article 6521, Vernon’s Sayles’ Civil Statutes, provides:

“In estimating either the injuries or the benefits, as provided in the preceding article, those injuries or benefits which the owner of such real estate sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use and enjoyment of the particular parcel of land, shall be altogether excluded from such estimate.”

Plaintiff’s proposition under the above assignment is, in substance, that the evidence shows that plaintiff's land not taken, for which he seeks damage because of the construction of defendant’s road, was worth more, or at least as much, after construction, than it was before.

It might be well- doubted whether the assignment and the proposition really raise a deduction of special benefits as offsetting the injuries. However, all of the testimony by the different witnesses reproduced-in appellant’s statement under said assignment is addressed to an enhancement of the value of the land on account of the construction of the railroad, which, it would seem to us, would be shared by the community. Evidence of a general increase in the value of the property in the neighborhood arising on account of the presence of the railroad is, of course, not to be considered in estimating or reducing such damages. We see no testimony quoted in the brief as affecting the value of the land pointing to benefits peculiar to the owner “and connected with his ownership, use, and enjoyment of the particular parcel of land.” While we do not think the testimony raises an. issue, however, at best, according to the statement in the brief, it could only be a question for the judge or jury.

The seventh assignment of error is based upon a ground in the motion for new trial of newly discovered testimony with reference to a contract found after the trial, and not produced at the hearing. This assignment before this court on account of previous discussion of the article with reference to condemnation by defendant and admission of title by it in this suit, we think, is wholly immaterial.

Before concluding to determine that part of the case upon the authorities and reasons adduced by us, we had carefully considered all the assignments, and would not have reversed the cause on either of them.

The judgment of the trial court is affirmed. 
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