Buffalo Bayou, Brazos & Colo. R.R. Co. v. Ferris

• Decision Date: 01 January 1863
• Citation: Buffalo Bayou, Brazos & Colo. R.R. Co. v. Ferris, 26 Tex. 588 (Tex. 1863)
• Parties: BUFFALO BAYOU, BRAZOS & COLORADO RAILROAD COMPANY v. GEORGE A. FERRIS.
• Court: Texas Supreme Court

26 Tex. 588

BUFFALO BAYOU, BRAZOS & COLORADO RAILROAD COMPANY

v.GEORGE A. FERRIS.

Supreme Court of Texas.

1863.

It cannot be questioned, that a railroad for travel or the transportation of produce for the country at large is a “public use,” for the construction of which private property may be taken, upon adequate compensation therefor being made.

That the road for the construction of which the property when taken is to be applied is a corporation of private individuals, to whose benefit the profits of the road when complete will alone accrue, furnishes no valid objection to such appropriation of private property.

If a grant of power by the legislature to a railroad company, to take and apply private property for the construction of their road, is in accordance with the restrictions and conditions provided by the constitution in such cases, and there has been no abuse of the power by the company in the exercise of the right, it cannot be said that the company, by entering upon and appropriating private property, which, by their charter, they are authorized to take, committed a trespass; but otherwise, if the power granted is not in accordance with the restrictions and conditions provided by the constitution authorizing the taking of private property for public use.

The constitution does not prescribe a rule for determining what constitutes adequate compensation for property taken for public use. It may be done in any manner that the legislature in its discretion may prescribe, if the means presented are effectual for fairly ascertaining the adequate compensation; therefore a charter providing that the compensation shall be ascertained by commissioners appointed by the district court, instead of by the finding of a jury, is not in violation of the constitution.

The constitutional provision, that the “right of trial by jury shall remain inviolate,” does not apply to the case of taking private property for public use, but to suits in courts of justice, and to serve known and fixed modes of judicial proceedings, for the trial of issues of fact in civil and criminal causes in courts of justice.

See this case for the provision of a railroad charter, providing a mode for determining the amount of compensation to be given for private property taken for the use of the road, which was held in violation of that clause of the constitution which provides that no person's property shall be taken or applied to public use without adequate compensation.

An execution on a judgment to be rendered at least two terms of the district court, subsequent to the taking of the property, cannot be considered as adequate compensation; nor can a means of payment, which may prove of doubtful or uncertain efficacy, be regarded as such compensation. The property must be paid for when taken or within a reasonable time thereafter; and the making of the compensation must be as absolutely certain as the property is taken.

In estimating the compensation to be given to the owner of land taken for public improvement, the advantages that may accrue to other land of the owner in the neighborhood, by reason of such improvement, cannot be taken into consideration. The owner is entitled to the intrinsic value of the land so taken, without reference to the profit or advantage from the construction of the improvement for which it was taken.

The owner is also entitled to such damages, if any, as are occasioned to the remainder of the tract of which the land taken was a part, and in estimating these damages, the benefits and advantages that the remainder of the tract will derive from the improvement are legitimate subjects of consideration.

A railroad company being sued for trespass, it was urged that although their charter may not have made provision for adequate compensation for the property taken, yet in the absence of such provision the company were still authorized to enter upon and take such land as they required to construct the road; and though they might have been restrained from doing so by injunction, yet they were acting under and in conformity with law, and cannot be regarded as trespassers; and consequently an action of trespass would not lie against them for such entry and taking. Held, that although this doctrine seems to be sustained by high authority, yet the court feel constrained to dissent from it.

Unless adequate compensation has been provided for any interference with private property, it matters not under what pretense is an injury done to the owner for which he is entitled to redress “by due course of law.”

APPEAL from Harris. Tried below before the Hon. Peter W. Gray.

Appellee sued appellant in the district court of Fort Bend county, alleging that he was the owner of certain premises constituting the homestead of the plaintiff and situated in the town of Richmond in said Fort Bend county; that the defendant, the Buffalo Bayou, Brazos & Colorado Railway Company was a body corporate, established and created by the legislature of the state of Texas, and was engaged in the construction of a railway under its charter; and that said company by its agents, with force and arms, had entered upon and taken forcible possession of a portion of said premises of plaintiff for the purpose of constructing a road bed for the railway of said company, and had constructed such road bed, and continued to hold possession of said portion of said premises, and plaintiff claimed damages against defendant for the said trespass upon his premises.

Defendant pleaded in abatement, that the Buffalo Bayou, Brazos & Colorado Railway Company, by its charter, was authorized to construct, own and maintain a railway over the route designated in said charter and amendment thereto, set out in the plea that by the act of incorporation, it is made lawful for the company to enter upon and purchase, or otherwise take and hold any land necessary for the purpose of locating, constructing and maintaining said railway--not exceeding fifty yards in width for the road of the railway, and that said company should pay such compensation to the owner of the land so taken as should be determined in the manner provided for in the 8th section of said act of incorporation, of which said section the following is a copy, to wit: Section 8. “That any person, when land has been taken as aforesaid, may apply to the district court of the county in which such land is situated, for the appointment of, and said court shall thereupon appoint three disinterested freeholders of the county, who shall appoint a time and place to hear the applicant and the company, to whom shall be given reasonable notice by the court of said time and place, and said freeholders shall, after being sworn and after hearing the parties, determine the amount of compensation as aforesaid, and make return of their award to said court at its next term; and said award may be confirmed or, for any sufficient reason, rejected by said court, in the same manner as awards of arbitrators under a rule of court; and if confirmed by the court, judgment shall issue thereon as in other cases. In determining the amount of compensation to be paid as aforesaid, said freeholders shall be governed by the actual value of the land at the time it was taken, taking into consideration the benefit or injury done to other neighboring land of the owner by the establishment of said railway. If in any case the amount found by the arbitrators shall not exceed the amount proved to have been offered by said company to the owner prior to his application to the court, the owner shall pay the costs of the proceedings, otherwise the company shall pay the same.”

And the defendant alleged that the land taken by said company and mentioned in plaintiff's petition was necessary for the location, construction, running and maintaining of the railway provided for in said act of incorporation and said amendment thereto, and is for the road bed of such railway--does not exceed twenty yards in width, and that by reason of the premises the court had not power to hear and determine said matters in said action, and had not jurisdiction of plaintiff's case. Defendant also by exceptions to plaintiff's petition presented the same questions as raised by the plea in abatement. Defendant also filed a general denial, and by answer also set up the special provision contained in the 8th section of defendant's charter, prescribing the matters to be taken into consideration in estimating the damages of a party whose land has been taken by the company for its railway, to wit: “that the values should be governed by the actual value of the land at the time it was taken, taking into consideration the benefit or injury done to other neighboring lands of the owner by the establishment of the railway;” that the value of the land taken by defendant at the time it was taken was not more than twenty dollars; that the plaintiff was the owner of a large quantity of land and town lots in the town of Richmond, in the neighborhood of said railway and its vicinity, and that by the establishment of the railway the said neighboring lands owned by plaintiff had been benefited and enhanced in value to the amount of ten thousand dollars.

Plaintiff filed a general exception to defendant's plea in abatement and the court sustained the exception, and also overruled defendant's exceptions to plaintiff's petition and the plaintiff recovered a judgment for five hundred dollars damages. At the trial defendant asked the court to charge the jury in the language of the 8th section of defendant's charter, as to the rule that should govern the jury in estimating the damages done to the plaintiff by defendant, which charge the court refused to give, but charged that the jury would only consider the effect of the construction of the railway upon the value of the particular lot or lots over which the railway was constructed.

Defendant appealed, and assigned for error: First. That the court...