Chicago, R. I. & G. Ry. Co. v. Tarrant Co. W. Control, Etc.

• Decision Date: 30 May 1934
• Docket Number: No. 6384.,6384.
• Citation: 73 S.W.2d 55
• Parties: CHICAGO, R. I. & G. RY. CO. v. TARRANT COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. I
• Court: Texas Supreme Court

Page 55

73 S.W.2d 55

CHICAGO, R. I. & G. RY. CO. v. TARRANT COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. I

No. 6384.

Supreme Court of Texas.

May 30, 1934.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Condemnation suit by the Tarrant County Water Control & Improvement District No. 1 against the Chicago, Rock Island & Gulf Railway Company. From the judgment, defendant appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.

Questions answered.

W. F. Peter, of Chicago, Ill., C. T. Gettys, of Decatur, Robert Harrison, of Fort Worth, and Ocie Speer, of Austin, for appellant.

Samuels, Foster, Brown & McGee and Ireland Hampton, all of Fort Worth, for appellee.

CURETON, Chief Justice.

This case is here on certified question. The suit arose out of a statutory effort on the part of appellee to condemn for its corporate purposes certain lands upon which the appellant had constructed, and for some twenty-five years has maintained, its roadbed, tracks, etc. The appellant, Chicago, Rock Island & Gulf Railway Company, a railroad corporation, chartered under the laws of Texas, owns and operates a line of railroad which runs through Wise, Tarrant, and other counties, in the former of which, on a branch line running from Bridgeport, in Wise county, to Graham, in Young county, is located the locus of this controversy. The appellee is a water control and improvement district, a governmental agency, body corporate and politic, organized under the Constitution and laws of this state, and is entitled to condemn the property in controversy. The statutes relative to the organization of the district, its purposes and operations, are elaborate ones, designed to accomplish the objects specified in the conservation amendment to the Constitution, compliance with which is here admitted. Vernon's Complete Texas Statutes, title 128, c. 3A, Acts 39th Leg. c. 25, Acts 41st Leg. c. 280 (Vernon's Ann. Civ. St. tit. 128, c. 3A).

The constitutional provision referred to, section 59a, article 16, adopted by vote of the people on August 21, 1917, in part reads as follows:

"Sec. 59a. The conservation and development of all of the natural resources of this State, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams, for irrigation, power and all other useful purposes, the reclamation and irrigation of its arid, semi-arid and other lands needing irrigation, the reclamation and drainage of its over-flowed lands, and other lands needing drainage, the conservation and development of its forests, water and hydro-electric power, the navigation of its inland and coastal waters, and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.

"(b) There may be created within the State of Texas, or the State may be divided into, such number of conservation and reclamation districts as may be determined to be essential to the accomplishment of the purposes of this amendment to the constitution, which districts shall be governmental agencies and bodies politic and corporate with such powers of government and with the authority to exercise such rights, privileges and functions concerning the subject matter of this amendment as may be conferred by law."

The appellee in its brief summarizes the objects sought to be accomplished by it, in aid of which the improvements here involved were being constructed, as follows:

"(a) To abate the deposit of silt in Lake Worth which forms the present source of the supply of water for the City of Fort Worth and to protect the Dam which stores water in Lake Worth from destruction by excessive flood.

"(b) To release water to Lake Worth in order to form an adequate source of supply of water for the City of Fort Worth.

"(c) To furnish water for the irrigation of approximately 28,000 acres of land situated in the Valley of the West Fork of the Trinity River in Wise County, Texas, lying between the Bridgeport Dam and the South line of Wise County, in a position contiguous and approximately parallel to the mainline railroad of the defendant.

"(d) To minimize the floods which in a state of nature would overflow the valley land of the Trinity River situated between the Bridgeport Dam and the South line of Wise County, which is an area contiguous to the main line tracks of the defendant, and which tracks in places are subject to inundation by extreme flood, which result from water to be controlled by the Bridgeport Dam. Also, by means of the combined effect of the Bridgeport flood control works and the Eagle Mountain flood control works to afford protection against flood for an industrial area of approximately 3,000 acres, situated in and near the City of Fort Worth, and in which area there are situated among other houses, plants and industries, extensive yard and terminal facilities of the defendant, all of which by means of the plaintiff's works will be protected against flood.

"(e) To furnish water for the operation of locks to provide for the navigation upon the Trinity River from the Gulf of Mexico to the City of Fort Worth, at such time as the Federal Government may decide to improve said stream for navigation. Plaintiff alleged that each and all of the objects sought to be accomplished are objects recognized by the laws of Texas to be governmental in character."

The extent and magnitude of appellee's activities are shown in the testimony of its engineer, Nichols, from which we quote as follows:

"The Tarrant County Water Control and Improvement District Number One is making improvements aggregating $6,500,000. The principal structures are (1) Main Bridgeport Dam (2) Berkshire Levee (3) Eagle Mountain Main Dam (4) Burgess Levee (5) Improvements to present levee system in Fort Worth.

"The Bridgeport Lake is formed by the construction of the Main Bridgeport dam and Berkshire levee. The main dam is constructed across West Fork of Trinity River just below confluence of Hunt's and Jasper Creeks with West Fork of Trinity River.

"Berkshire Levee is constructed across a saddle or gap in the hills on east side of Bridgeport Lake. Its construction is made necessary by the low elevation at this point and provides a `side dam' for retention of flood waters. This levee is as essential to the project as is the main dam.

"Approximately $2,150,000 has been spent on the Bridgeport Lake.

"The works being constructed by Tarrant County Water Control and Improvement District Number One have a two-fold purpose (1) storage for beneficial uses, and (2) storage for flood protection to lands and properties below the Bridgeport Dam.

"Water stored for beneficial uses will be used for (1) water supply for Fort Worth, Texas, and other communities along and near the Trinity River; (2) ultimate irrigation of twenty-six thousand acres of land in Wise County below Bridgeport dam."

The constructions giving rise to this controversy are on the West fork of the Trinity river, in Wise county, and consist of a large dam across the river about four miles west from the town of Bridgeport, and a levee, known as the Berkshire levee, in the same area, but approximately five miles southwest of the town; the purpose of the structures being to impound and hold the waters of the river and its attendant tributaries in a large reservoir designated on the map as Bridgeport Lake. See Exhibits A and B from the record, shown here in reduced scale.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

By referring to these exhibits, the precise question here involved may be readily understood. Bridgeport Lake, which will be made by the construction of appellee, is the shaded area on Exhibit B and will submerge 3.9791 miles of appellant's railway, of an agreed value of $128,538. West of the shaded area, and between the flood shore line of the lake and the station of Vineyard, and east of the lake between its flood shore line and the point indicated at the intersection of appellant's railway and the "Proposed Relocation" are two sections of appellant's railway, which, while not to be covered by the waters of the lake, nevertheless will be "dead ends" and of no practical value, as we view the record. The distance from Vineyard on the north, through the lake, following appellant's railway to its intersection with the line of the proposed relocation, is 9.54 miles, of an agreed value of $243,000. The distance from Vineyard, following the line of the "Proposed Relocation," passing west of the lake, and to the point of intersection with appellant's railway, east of the lake, is 10.65 miles. The agreed cost of relocating and reconstructing appellant's line along this course would be approximately $399,000.

The question certified by the Court of Civil Appeals is: Which of these amounts represents the true measure of damages due appellant under the Constitution and statutes?

The Trinity river and its tributaries, in which are included the streams involved in this immediate controversy, constitute one of the great river systems of the state, with a drainage area of some 17,000 square miles. Its headwater tributaries rise east of the breaks of the plains and south of Red river in the counties of Archer, Clay, Montague, and Cook, and form the the main stream of the Trinity in Dallas county, which then runs in a southeasterly direction some 450 miles into Trinity Bay, one of the arms of the Gulf of Mexico. U. S. Geo. Survey Water Supply Paper No. 448, p. 243.

Each sovereignty which has exercised jurisdiction over the territory constituting Texas —that is, Mexico, the state of Texas, and the United States—has regarded the Trinity river as a stream navigable in fact, and from time to time enacted laws...