Denison & S. Ry. Co. v. St. Louis S. W. Ry. Co. of Texas

• Decision Date: 16 February 1903
• Citation: 72 S.W. 161
• Parties: DENISON & S. RY. CO. v. ST. LOUIS S. W. RY. CO. OF TEXAS.
• Court: Texas Supreme Court

72 S.W. 161

DENISON & S. RY. CO. v. ST. LOUIS S. W. RY. CO. OF TEXAS.

Supreme Court of Texas.

February 16, 1903.

Certificate of dissent from Court of Civil Appeals of Fifth Supreme Judicial District.

For opinion in the Court of Civil Appeals, see 72 S. W. 201.

The following are the statement and questions from the Court of Civil Appeals:

On March 9, 1901, plaintiff brought suit for injunction and for other relief against defendant; alleging, among other things, that plaintiff had the right to lay its tracks and operate its cars from the center of East street between Pecan and Mulberry streets; that the right was exclusive in so far as it affected the construction of other lines of railway in the center of East street; that plaintiff had appropriated the said right of way by planting its poles along the edge of the sidewalk, and had strung its span wires between the poles, and had strung its trolley wire on its span wires along the center of East street, preparatory to building its track along the center of same, when the defendant, at night and by force and arms, began the construction of a line of steam railway along the center of East street between Pecan and Mulberry streets, and was so constructing the same, with a great number of hands, at the time of the filing of the petition. A temporary injunction was granted, and defendant thereafter filed an answer in which it prayed that the plaintiff be also enjoined from interfering with the part of the road that defendant had put down at this place, and a temporary injunction was granted to the defendant. Upon the trial of the case judgment was rendered in favor of the defendant, and plaintiff was perpetually enjoined from building its track on the center of East street between Pecan and Mulberry streets, or from in any wise interfering with the occupation of the center of East street by the defendant. Plaintiff duly excepted, and perfected an appeal by writ of error to this court. The case was tried in the lower court without the intervention of a jury. There is no statement of facts in the record. The court filed its conclusions of fact, which we adopt, as follows:

"(1) In 1887 the St. Louis, Arkansas & Texas Railway Company was a corporation, duly and legally incorporated under the laws of the state of Texas relating to the incorporation of railways, for the purpose of owning, operating, and maintaining a railway, and with such powers, privileges, rights, and franchises as may be granted under said laws. By the terms of the charter, said railway was authorized to extend, among other places, through Grayson county, and into the city of Sherman, in Grayson county, Texas.

"(2) In the year 1887, and for several years prior and subsequent thereto, and until the year 1895, the city of Sherman was a corporation, duly and legally incorporated under the general laws of the state of Texas, for the incorporation of cities of more than one thousand and less than ten thousand inhabitants. About the year 1895 it was incorporated by special act of the legislature, but the powers are not materially different from such as it had while incorporated under the general laws.

"(3) East street prior to and during 1887 was, and since then continuously has been, a street established in the city of Sherman, running from the north boundary line thereof to or near the south boundary line thereof. The Texas & Pacific Railway, running east and west, crossed East street at a point a trifle over half a mile from the north boundary line. The first street running east and south of the Texas & Pacific Railway is Mulberry street, the next is Pecan street, the next is Houston street, and the next is Lamar street, and the next is Cherry street.

"(4) On the 21st day of February, 1887, the city council of the city of Sherman passed the following ordinance:

"`An ordinance granting right of way to the St. Louis, Arkansas Railway Co. over East street.

"`Section 1. Be it ordained by the city council of the city of Sherman that the permission of said city be and the same is hereby given to the St. L. A. & Texas Railway Company to construct, operate and maintain its railway upon, across and over East street in the city of Sherman from the point where the T. & P. crosses said street to the southern terminus thereof.

"`Sec. 2. That the permission of the city of Sherman is hereby granted to the St. L., Ark. & Texas Ry. Company to build across and upon the streets that intersect East street from the crossing of the T. & P. Ry. Company south to their terminus of East street, to the extent that may be necessary in operating their railroads.

"`Sec. 3. The rights and privileges hereby granted is and shall hereby be construed to be a condition that the said railway company shall construct and keep in repair all necessary street crossings and shall at all times conform the grade of said road to the grade of said street as the same now exists or as the same may hereafter be established by the city council of the city of Sherman.

"`Sec. 4. That this ordinance take effect and be in force from and after its passage.'

"(5) The St. Louis, Arkansas & Texas Railway Company acted on said ordinance, and subsequent to the passage of such ordinance, and about June or July, 1887, the St. Louis, Arkansas & Texas Railway Company, which was then constructing its railway, built into the city of Sherman. It established its depot north of Cherry street, and just south of and adjoining Lamar street, and continued its track northward along East street, and in the center thereof, to a point just south of and near Houston street, where said track remained without extension about until the year 1891.

"(6) The St. Louis, Arkansas & Texas Railway Company executed certain mortgages on its railway properties, privileges, and franchises to secure certain bonds executed by it, and on the 8th day of June, 1889, suit was filed in the United States Circuit Court for the Eastern District of Texas to foreclose these mortgages. On the 24th day of July, 1890, this suit resulted in a decree of foreclosure on all the rights, privileges, and franchises and properties, of every kind and character, of the St. Louis, Arkansas & Texas Railway Company, and the same were duly ordered by the court foreclosing the mortgage to be sold in satisfaction of the amount found to be due on the bonds. Under this decree, sale was duly and regularly made in October, 1890. Sale was confirmed on the 9th day of December, 1890, and deed was ordered made to the purchaser of said property, the St. Louis Southwestern Railway Company of Texas, of all rights, properties, privileges, and franchises of the St. Louis, Arkansas & Texas Railway Company; and under and by virtue of the orders and directions of the United States Circuit Court for the Eastern District of Texas, having control and jurisdiction of the same, in November, 1891, all the properties, privileges, rights, and franchises of the St. Louis, Arkansas & Texas Railway Company passed to and vested in the St. Louis Southwestern Railway Company of...