HOUSTON BELT & TERMINAL RY. CO. v. HORNBERGER, 157 S.W. 744

HAWKINS, J.

The Court of Civil Appeals for the First Supreme Judicial District has certified for our decision two questions, which, with its statement of the case, are as follows: “Appellant, a terminal railway company organized and chartered under the laws of this state, and claiming as such the right of eminent domain, filed its application and statement with the county judge of Harris county, in accordance with the provisions of the statute, seeking to condemn for right of way purposes a strip of land 96.4 feet in width by 1,442 feet in length over and upon a tract of 75 acres of land near the city of Houston, in Harris county, Tex., belonging to appellee, Hornberger.

Commissioners were appointed, as required by the statute, and the appellee being cited appeared and filed answer. Upon a hearing before said commissioners both parties introduced evidence of the value of the land sought to be condemned, and of the damages to the remainder of the land of appellee. After hearing and considering the evidence the commissioners, on July 2, 1910, found that the va'ue of the land sought to be condemned and the consequential damages to the remainder of appellee’s tract amounted to $1,600, and made, signed, and filed their findings in writing to that effect.

On July 7, 1910, appellee filed his written objections and opposition to the award of the commissioners and gave notice of appeal to the county court of Harris county. Thereupon appellant tendered to the appellee the sum of $1,600, the amount of said award, and upon his refusal to accept same deposited said amount with the clerk of the county court of Harris county, subject to appellee’s order, and at the same time paid the cost adjudged against it, made the additional deposit, and executed the bond required by the statute to entitle it to take possession of said right of way.

After fully complying with the statute, as aforesaid, appellant took possession of the strip of land sought to be condemned by it and constructed thereon its roadbed and track for permanent use in connection with the remainder of its track. “Upon the trial of appellee’s appeal in the county court of Harris county, after rendering a judgment on April 3, 1911, on the verdict of a jury in favor of plaintiff for condemnation of the right of way, and in favor of defendant for damages in the sum of $7,-392.50, the court, on April 10, 1911, sustained a motion by defendant in arrest of judgment and entered a final judgment vacating the former judgment rendered on April 3d, and denying appellant’s right to condemn appel-lee’s property, on the ground that appellant is not a common carrier and not subject to regulation by the Railroad Commission of the state of Texas, and therefore the statute giving it the right of eminent domain is unconstitutional.

This'judgment further decrees that appellee have a writ of possession for the right of way over his land now in the possession of appellant.

From this judgment ap- ' pellant, having excepted thereto in open court and given notice of appeal, perfected its appeal to this court by filing in due time a supersedeas bond in an amount more than double the value of the property, the damages claimed by appellee, and the probable cost, and conditioned as prescribed by articles 1404 and 1405 of the Revised Statutes. “Thereafter, on application to this court by appellant, it was made to appear that, notwithstanding said appeal and the filing of said supersedeas bond by appellant, appellee had procured, or was about to procure, the issuance of a writ of possession by the county clerk of Harris county, and to proceed thereunder to oust appellant from the possession of said right of way pending the decision of the appeal to this court.

Upon this showing we ordered the issuance of a writ of injunction restraining appellee from executing the judgment of the court below pending the final decision of the appeal. “This writ having been issued and served, appellee in due time filed and presented a motion to dissolve the injunction, on the ground that this court was witliout authority to grant such writ, because it was not necessary to enforce the jurisdiction of the court, and because the statute authorizing the filing of a supersedeas bond on appeal does not apply to condemnation proceedings when the right to condemn is denied by the judgment of the trial court, but that, on the contrary, the act of the Twenty-Sixth .Legislature, c. 70, p. 105, amending

article 4471 of the Revised Statutes, expressly provides that an appeal shall not suspend the judgment of the county court in such case. “We overruled the motion to dissolve, but a motion for rehearing is now pending, and because of the importance of the question involved and the fact that our decision is probably final, we think it best to certify the questions for your determination. “Upon the foregoing statement we respectfully ask: “First.

Does the statute above mentioned deny appellant the right to suspend the judgment of the county court, awarding appellee his writ of possession, by appealing therefrom? “Second. Did this court have jurisdiction to grant the writ of injunction?” We answer the first certified question negatively and the second affirmatively, for the reasons and upon the grounds set forth in the lucid and able opinion of the Court of Civil Appeals in this cause, written by Chief Justice Pleasants, reported in 141 S. W. 311, which we approve.