In the face or the findings of fact by the trial court filed herein and set out in the majority opinion the writer feels some doubt as to the correctness of the conclusions reached by his Brethren. The case as now presented is in many respects different from that shown on the former appeal. In the first place, by the amended pleadings filed subsequent to our decision in the former appeal plaintiffs present a somewhat different cause of action, among other things supplying the allegation "that it was not necessary for the operation of the defendant railroad that it have said fence erected and maintained on said property as above described." The absence of this averment was commented on in the opinion on the former appeal reported in 176 S.W. 827. In the second place, the court has found facts which have not been attacked by the appellee, which substantiate the claim of the appellants that the erection and maintenance of this fence is not necessary far the safe operation of defendant's track or tracks, and for the uses for which the property had been condemned, and that the use of the premises by the plaintiffs as a means of egress and ingress to the rear of the saloon and to the restaurant is not inconsistent with the use of the premises for the purposes for which the condemnation proceedings were had, and does not increase the hazard on the part of the defendant in the use thereof for said purposes. In the absence of a positive showing, or at least a reasonable presumption from the facts recited, that such use by the plaintiffs was inconsistent with the use of the premises by defendant for the purposes for which the property had been condemned, it seems to the writer that an appellate court is not justified in presuming in favor of the judgment the necessary facts to sustain it. This is especially true when the court's findings are contrary to such presumptions. In Kimball v. Houston Oil Co., 100 Tex. 336, 99 S.W. 852, our Supreme Court, speaking through Justice Williams, says:
"It is the contention of plaintiffs that the district judge and the Court of Civil Appeals erred in holding that it was incumbent upon them to prove that Isam Parmer, the junior purchaser of the land in controversy, paid for it a valuable consideration and took without notice of the prior unrecorded deed to David Brown. Besides controverting this proposition, the defendants in error urge that this question does not arise in the present state of the record, because, they say, there being no statement of facts, the court should presume in favor of the judgment that every fact essential to its correctness was proved. This is the rule where there is neither statement of facts nor findings of the trial judge; but it is not applicable here, because the law authorizes an appeal upon such findings alone, and generally entitles the appellant, who has properly excepted to them, to have the correctness of the legal conclusions on which the judgment rests tested by the facts stated as their basis. Continental Ins. Co. v. Milliken, 64 Tex. 46; Chance v. Branch, 58 Tex. 490; Cousins v. Grey, 60 Tex. 346.
"It may sometimes happen that findings omit any mention of a fact proof of which would be essential to the correctness of the judgment, and that, in the absence of anything said about it, such fact should be presumed; and we are not to be understood as holding that such findings are to be treated as special verdicts were formerly treated, and required to state affirmatively every fact necessary to support the judgment. Thomas v. Quarles, 64 Tex. 493. However that may be, it is apparent that in this case the trial judge stated affirmatively the facts and the state of the evidence from which he drew his conclusions of law, and held that the junior must be regarded as inferior to the senior deed, in the absence of proof that the last purchaser paid value and bought without notice. It cannot be presumed, in view of the express statements made, that there was proof of other record or notice or want of consideration than such as is mentioned."
In Reed v. Brewer, 90 Tex. 144, 37 S.W. 418, it is said, quoting from the syllabus:
"Where trial is without a jury, and no findings of fact are made, it will be presumed on appeal that the court found every fact necessary to its judgment fairly deducible from the evidence. A party desiring to avoid being bound by this presumption should demand of the trial court the filing of conclusions of fact." *Page 950
The court finds in paragraphs XXIV, XXV, XXVI, and XXVII that the distance from the house track, the only track on the lot condemned, to the door of the restaurant, is 17 feet 4 inches, and the distance from said house track to the door in the rear portion of the saloon is 21 feet, that the industrial track is not used on an average of more than four times a week, and that for the purpose of operating this industrial track it is not necessary for the safe operation of same for the defendant company to have and maintain the fence so erected. It further appears from said findings (XXIII) that:
Only "a few times there were seen as many as three or four people standing together by the sides of the doors opening on to this passageway during the period of September 5, 1914, to January 7, 1915, and sitting upon beer kegs around said door; occasionally passengers from the trains stopping at the Union Station walked across the tracks of defendants and entered into the back door of said saloon."
It further appears from the findings of the court (VII) that the defendant has erected a public passway between Seventh and Eighth streets, and has erected and maintained a crossing over this house track near the end of the premises now occupied by plaintiffs, and that said public crossing had been used generally by the public for three years prior to the time plaintiffs entered into possession of said premises.
As the writer understands the record, the defendant company has constructed and maintains a public passway running the full length of plaintiffs' premises and lying just east of the fence erected. Since the railway company has voluntarily devoted to the use of the public this passway running the length of plaintiffs' property and crossing defendant's house track, the writer cannot see how it could be reasonably claimed that there would be any increase in the hazard to life or to property by reason of certain ones of the public turning off at this passway into either or both of the open doors leading into plaintiffs' building. From the findings of the court it appears that it is only rarely that any one attempts to cross from the depot over to plaintiffs' place of business, and therefore the writer necessarily concludes that plaintiffs' patrons generally use the very passway which has been constructed for and thrown open to the public. Since the house track is more than 17 feet from the door of the restaurant, the fact that a few times three or four people stood in or about the doorway, or sat upon kegs around said doorway, could hardly support the conclusion that thereby and therefrom the use of this house track by the defendant was impressed with any additional danger or hazard,
While there might be some question as to whether under certain circumstances a lessee of the hotel building would succeed to the rights reserved to the owner of the premises condemned, yet no question seems to be made with reference thereto, and it was stated on oral argument that no question existed. Therefore it is assumed that the plaintiffs herein possessed all of the rights to the use of the premises condemned which were not inconsistent with the uses of the railway in contemplation of the condemnation proceedings. The erection of this fence by the railway company is either an additional use to those enumerated in the condemnation judgment, or a means of securing the safe and unimpeded use for the purposes designated in said judgment. The court has found as a matter of fact that the erection of the fence is an additional use, and, if so, it would require a further condemnation. In the case of Lyon v. McDonald, 78 Tex. 71, 14 S.W. 261, 9 L.R.A. 295, our Supreme Court held that, where a railroad company permits a party to use part of the premises condemned for depot grounds for storing lumber shipped to him over the railroad until sold, and allows him to erect thereon an office, etc., the owner of the fee can recover from such party the rental value of the premises so used for a lumber yard; as the railroad company neither has the right to use the premises for such purposes, nor to permit others so to use them. It is further held in this case that, though the owner of the fee in the premises condemned for depot grounds owns an adjacent lot, he has no right of passageway over the railroad grounds except the public crossings. This opinion further holds that:
"Where land is condemned for a special purpose on the score of public utility, the sequestration of the land is limited to that particular use; and, if the property be put to a wholly different use, though for public purposes, a new assessment will be required."
Since the court has found that the railroad company has devoted that portion of the lot condemned lying adjacent to and the length of the hotel building leased by plaintiffs to the purposes of a public crossing or passway, the writer is of the opinion that the plaintiffs would have the same right, and also their customers, to use this passway as other members of the public, and that it would make no material difference that in so using such passway they should do so for the purpose of entering or coming from the restaurant or the rear of the saloon.
Without further extending this dissent, it is sufficient to say that, in view of the findings of fact by the court above referred to, and in view of the authorities cited, the writer is of the opinion that the judgment of the trial court was not authorized, and should be reversed. *Page 951