Lyon v. McDonald

• Decision Date: 24 June 1890
• Citation: 14 S.W. 261
• Parties: LYON v. McDONALD.
• Court: Texas Supreme Court

14 S.W. 261

LYON v. McDONALD.

Supreme Court of Texas.

June 24, 1890.

Commissioners' decision. Appeal from district court, Hill county.

Foster & Wilkinson, for appellant. W. L. Booth and B. D. Tarlton, for appellee.

COLLARD, J.

Appellant contends that where lands are condemned by right of eminent domain, under the statute for depot and station grounds for railroad purposes, the fee is taken. We think the fee remains with the original owner. Mills, Em. Dom. §§ 58, 59, 208; 2 Wood, Ry. Law, 770, 771, and note 2; Lance's Appeal, 55 Pa. St. 24; Pierce, R. R. 159, 160; Heard v. City of Brooklyn, 60 N. Y. 242; Strong v. City of Brooklyn, 68 N. Y. 1; Railroad Co. v. McLanahan, 59 Pa. St. 28. Articles 4210, 4211, and 4212 of the Revised Statutes refer to lands acquired by purchase by railroad companies, and are not applicable to the question before us. We are not called on at this time to construe these articles. They authorize a railway company to sell lands voluntarily conveyed to it, when no longer required for use by the company. It does not follow from this that it could sell or own a fee in lands condemned for its uses; nor that it could sell the fee, when the fee was not conveyed to it. It is provided by statute of this state, enacted February 7, 1861, and re-enacted in the Revised Statutes, art. 4206, that the right of way secured to a railroad in the manner provided by law, that is by condemnation, shall not be so construed as to include the fee; but it cannot be argued from this that land condemned for depot grounds passes the absolute fee-simple estate. The act allowing a railway company to take land from the owner for depots, machine shops, or material thereon, for the purposes of its incorporation, was passed in 1876. It would not be reasonable to conclude that, because it was silent as to the fee, it was intended the fee should pass, merely because the act of 1861, then in force, reserved the fee to the owner in case of condemnation of the right of way. The reason is on the other side. Rev. St. arts. 4179, 4206. It becomes necessary to know what use the defendant by permission of the railway company put the vacant depot grounds to, in order to ascertain whether the owner's rights in the fee were interfered with or not. The agreement of the parties and the findings of the court furnish us the facts in this respect as follows: "About the 15th of February A. D. 1882, the defendant, O. T. Lyon, who was an extensive dealer in lumber and building materials, and shipper of same in large quantities over the said railroad, was permitted by said Missouri Pacific Railroad Company to use a portion of the premises so condemned for depot grounds, but not immediately needed, the same being south of the depot, and immediately adjoining its side track, for the purpose of unloading and storing lumber shipped to him over its railroad. The permission given was verbal, and for no particular time, and no rent or compensation was promised or to be paid, the permission given being for the accommodation of both parties, and no compensation being received or required by the said railroad company, except the increased convenience and facility afforded for the unloading of its cars of lumber, and the avoidance of delay in such unloading by reason thereof. Defendant has ever since continued to occupy on the same terms a portion of said grounds, about 300 feet north and south, and 70 feet east and west, west of and adjoining the side track of said railroad, by unloading and piling lumber thereon from the cars of said railway company, and loading the same therefrom on the wagons of purchasers as sold, and adjoining the west line of said track has erected an office 16 by 16 feet, and a shed 220 feet long, for sheltering dressed lumber. The number of car-loads of lumber received and unloaded there during the first 10 months was 347, and during the 12 months following 261 cars, and defendant has been constantly receiving and selling lumber during the time he so occupied, and, by being permitted to unload and store lumber on these grounds, defendant has been enabled to receive and unload the cars of said railway company more rapidly than he could if compelled to haul the lumber to a yard in some other place, and thereby said railroad company has avoided much delay of its cars for unloading." The meaning of this is that the railway company permitted Lyon to use its grounds as a lumber-yard for his private business as a lumber dealer, the company being benefited thereby only in having its cars more conveniently unloaded of lumber hauled there for him. It was an exclusive license to him alone, and not to the public generally, that he should carry on his trade of lumber dealer on grounds condemned for depot purposes. The company would certainly have had the right to permit the public to so use the grounds in unloading its cars, and in receiving freight; but the permission here was to a particular person to so receive his freight bought and sold in his business, to store the same on the grounds, to erect sheds for the protection of his property, and to use the premises as a place of business. Such uses were inconsistent with the purposes for which the land was condemned, as much so as if it had been used as an ordinary warehouse or grocery store.

It has been held that a railway company might grant a license for the erection and use of buildings on its right of way for convenience in delivering and receiving freight. Railroad Co. v. Richardson, 91 U. S. 468. And it has been held that where "the premises were occupied as a station, furnishing food, lodging, horse-keeping, and horse-hire, and allowing buildings upon it to be used for a boarding-house and a stable, and some of the land to be cultivated, all for the convenience of passengers and others, in order to increase the business of the road," such uses "were incident to its business as a passenger carrier, and consistent with its occupation for the purposes for which the land was taken, and with a claim to occupy for those purposes. Peirce v. Railroad Corp., 6 N. E. Rep. 96. The doctrine was applied in the foregoing case to show that such an occupation and use would not disseize the owner of the fee, and entitle him to recover the premises because of improper use. These cases, however, do not go the extent of holding that to use the premises taken for warehouses, shops, trades, etc., by private persons, it would not amount to such an abandonment by the corporation of the easement as would give the owner of the fee a right to damages for such use. If the doctrine could be stretched to this extent, there would be nothing to prevent a railroad corporation from having its right of way, and all its grounds...