Crary v. Port Arthur Channel & Dock Co.

• Decision Date: 21 November 1898
• Citation: 47 S.W. 967
• Parties: CRARY v. PORT ARTHUR CHANNEL & DOCK CO.
• Court: Texas Supreme Court

47 S.W. 967

CRARY v. PORT ARTHUR CHANNEL & DOCK CO.

Supreme Court of Texas.

November 21, 1898.

Certified questions from court of civil appeals of First supreme judicial district.

Condemnation proceedings by the Port Arthur Channel & Dock Company against Charles T. Crary. Judgment for plaintiff. Appeal to the court of civil appeals, and questions certified.

Votaw, Martin & Chester, A. H. Willie & Sons, and Coke & Coke, for appellant. Greer & Greer, for appellee.

GAINES, C. J.

The court of civil appeals for the First supreme judicial district has certified for our determination the following questions: "The Port Arthur Channel & Dock Company was organized as a private corporation under the general laws of this state for the purpose expressed in the second article of its charter, as follows: `Second. The purposes for which this corporation is formed are to construct, own and operate a deep water channel from the waters of the Gulf of Mexico at Sabine Pass, along and across Sabine Lake on the coast of Texas, to a point on the mainland at or near the town of Port Arthur, in the county of Jefferson and state of Texas, for the purposes of navigation and transportation, and to construct, own and operate docks along the coast of the state of Texas, at or near said channel, for the protection and accommodation of ships, boats and all kinds of vessels for navigation and their cargoes, with full authority to exercise all of the rights and privileges described by chapter fourteen of said title 21 of said Revised Statutes [of 1895] of Texas, and all acts amendatory thereof and supplemental thereto.' It seeks to condemn land belonging to the appellant, through which to cut its proposed channel, and this appeal is from a judgment of the county court of Jefferson county by which the land was condemned. Sabine Pass connects Sabine Lake with the Gulf of Mexico. It is about nine miles long, is of an average width of four-fifths of a mile, and has an average depth of thirty feet. Sabine Lake is a much larger body of water. From Mesquite point, at its exit into the pass, the Texas shore of the lake runs for some distance almost due west, and then trends in a northwesterly direction, and finally in a northeasterly direction, until Port Arthur is reached, which is situated near the shore of the lake. Appellee proposes to cut its channel from a point on Sabine Pass about four miles from its entrance into the Gulf of Mexico, and thence inland to Port Arthur. The proposed route running from Sabine Pass enters the mainland immediately, and runs thence in a northwesterly direction, departing from the course of the pass and approaching the shore of the lake, which it reaches at about the distance of three miles from the beginning. It runs along the shallow edge of the lake the distance of about one-half of a mile, the right of way extending into the water, but the channel proper being on the shore, and then gradually diverges from the shore line until it reaches Taylor's Bayou, which it crosses about 2,000 feet from its mouth, and continues thence in a northeasterly direction to the town of Port Arthur. The land sought to be condemned lies from the beginning point at Sabine Pass to the place where the line strikes the lake, and from this place to its northern end the channel is wholly upon the land of appellee, and appellee's projected docks at Port Arthur will be upon its own land. Taylor's Bayou empties into Sabine Lake, and is wholly within the state of Texas. It is a navigable stream for about 25 or 30 miles from its mouth. It is about 300 feet wide and 25 feet deep, but at its mouth in the lake the water is only three and a half feet deep, and vessels drawing a greater depth cannot enter it. The channel is inland entirely within the state of Texas. Its general course is that of the shore of the lake along and near which it runs. It will be about nine miles long, twenty-four feet deep, and one hundred and eighty-three feet wide, except at its mouth at Sabine Pass, where it will be two hundred and fifty feet wide. The topography of the country over which the route lies is low and level. Destructive storms of more or less violence have visited Sabine Pass. Shipping in the stream and houses in the town have been destroyed by storms, with great loss of life to the people. Bodies of persons drowned and debris have been thrown upon the northern shore of the lake as far north as the place where Port Arthur now is. Appellant in its answer pleaded that, in order to give appellee the right to construct its channel, it was necessary for it to first obtain the permission of the secretary of war, as provided by act of congress, which had not been done. To this the court below sustained a demurrer by the appellee, and no proof of such consent was made. The disposition of the case involves the determination of the following questions, which are certified to the supreme court for their decision: (1) Has the appellee authority, under the law providing for the creation of channel and dock corporations, to cut its channel inland along the proposed route, or must the channel be confined to the waters of the lake? (2) In order to authorize the appellee to maintain its suit to condemn the land of appellant for the construction of its channel, is it necessary for it first to obtain the permission of the secretary of war, as prescribed by act of congress? Or can appellant raise the question in this proceeding? (3) In order to give the appellee the right to condemn the land of appellant for the construction of its channel, must it show that such condemnation is necessary to enable the appellee to reach a place of safety for its docks?"

In 1874 our legislature enacted a general law authorizing the creation of private corporations for certain specified purposes. Laws 1874, p. 120. In this act authority was given for the organization of corporations for "the construction of canals for the purpose of irrigation or manufacturing purposes." No authority was given for creating a corporation for the construction of deep-water channels for the purposes of navigation, unless it was conferred by the last subdivision of section 5 of the act. That section specifies, in 27 subdivisions, the several purposes for which corporations may be created, the last of which reads as follows: "(27) For any other purpose intended for mutual profit or benefit not otherwise especially provided for, and not inconsistent with the constitution and laws of this state." The constitution of 1876 provided that private corporations should only be established by general laws, and in the Revised Statutes of 1879 the act was embodied as title 20, with some omissions made necessary by other limitations in the organic law. In that title section 5 was incorporated as article 566. It seems that the subject of deep-water channels received neither the attention of the legislature which passed the original act, nor of that which enacted the Revised Statutes of 1879. Article 566 was amended in 1885, but not only was there no express authority given by the amended article for incorporating companies for the purpose of making deep-water channels or canals for navigation, but subdivision 27, quoted above, was wholly omitted. Under that subdivision only was any authority conferred for creating corporations for the purpose of constructing canals or deep-water channels for navigation, and no authority whatever was given for condemning land for such purposes. But at the session of the legislature which was held in 1887 a change of legislative policy was manifested, for which it is not difficult to account. A few months previous to that session a disastrous storm had visited our coast, and had destroyed much property and many lives. Not many years before, a disaster probably still more serious had occurred. Not only was much property destroyed, and many lives lost, but one of our most flourishing seaport towns was completely swept out of existence. In the interval between the two there were, as we recollect, one or more similar disasters, which were not so great, but which were sufficient to admonish our legislators of the danger of building up towns upon our low-lying and storm-swept coast, and to suggest the policy of encouraging by appropriate laws the deepening of our water ways, and the digging of canals through which the shipping of the gulf could pass and reach more elevated ground, where the danger would be materially lessened, if not altogether avoided. The twentieth legislature, which met in 1887, passed two acts relating to the subject under consideration, both as amendments or additions to title 20 of the Revised Statutes, which was the then existing general law which authorized the...