G., C. & S. F. R'Y Co. v. Fuller

• Citation: 63 Tex. 467
• Decision Date: 06 March 1885
• Docket Number: Case No. 2049.
• Parties: G., C. & S. F. R'Y CO. v. ALMOND FULLER.
• Court: Supreme Court of Texas

63 Tex. 467

G., C. & S. F. R'Y CO.

v.ALMOND FULLER.

Case No. 2049.

Supreme Court of Texas.

Mar. 6, 1885.

APPEAL from Harris. Tried below before the Hon. James Masterson.

Suit brought October 15, 1883, by Almond Fuller against the Gulf, Colorado & Santa Fe Railway Company, to recover the sum of $3,000 for damages, alleged by plaintiff to have been occasioned to land and improvements thereon owned by him, on St. Emanuel street, in the city of Houston, Texas, by the building and operating by defendant of a railroad on that street. The lots were occupied by plaintiff as a homestead.

The defendant demurred generally and specially to plaintiff's petition, and answered by a general denial and special pleas, alleging that defendant had permission and authority, by its charter and ordinances of the city council of Houston, to build and operate its railroad. That the road had been carefully and skilfully built, and that engines and cars thereon were properly and carefully operated, and that St. Emanuel street, in front of plaintiff's property, had been very greatly improved by the work and labor of defendant; that by reason thereof it was in a better condition to be traveled over, and for all the ordinary purposes of a street, than it was before defendant constructed its railroad over the street, and that by reason of the building and operating of the railroad, and the work done by defendant in connection therewith, the property of plaintiff had been enhanced in value.

The demurrer and special exceptions of defendant were overruled. Verdict and judgment for plaintiff for $1,200.

It was admitted on the trial of the case that defendant had permission and authority by its charter, and under the ordinances of the city of Houston, to build and operate its railroad on and over St. Emanuel street; and there was no evidence of any unskilfulness in the construction of the road or the operation of trains thereon.

Several witnesses testified that the property was worth less on the market by from twenty-five to thirty-three and a third per cent. than it would be if defendant's railroad was not there; that it was less desirable and valuable for homestead purposes than it would be without the railroad, though some witnesses thought its value for other purposes may not have been impaired.

The lots were worth from $2,000 to $2,500, without the improvements. A narrow gauge railway runs through the center of the street, and defendant's track was placed between the narrow gauge railroad and plaintiff's premises, there being scarcely room to drive between.

Jones & Garnett, for appellant, that the petition disclosed no cause of action, cited: Charter of City of Houston, sec. 23, as amended in 1883 (see Special Laws 18th Legislature, p. 15); art. 4173, R. S.; H. & T. C. R. R. Co. v. Odum, 53 Tex., 351.

Brady & Ring, for appellee, that there was no error in the court's charge, cited: Sec. 17, Bill of Rights, Const. 1876; art. 4196, R. S. 1879; 1 Red. on R'ys, 71; R. R. Co. v. Odum, 53 Tex., 351; 2 Dill. on Mun. Cor., 633; Id., note 1; Id., 640; Banks v. Ogden, 2 Wall., 57;Barney v. Keokuk, 4 Otto, 336; R. R. v. Scott, 3 Am. & Eng. R'y Cases, 218, and note, Id.; 2 Dill. on Mun. Cor., 704, note 1, Id.; Cooley on Const. Lim., 549; R'y Co. v. Lawrence, 7 Am. & Eng. R'y Cases, 95.

STAYTON, ASSOCIATE JUSTICE.

It is claimed by the appellant that as it had permission, under its charter and the ordinances of the city of Houston, to build and operate its road on the street, and has done so carefully and skilfully, it is not liable to the appellee for any injury that has been done to his property on the street, in the construction and operation of its road.

The legislative permission thus obtained doubtless relieves the appellant from liability to the public, if it has carefully and skilfully constructed and operated its road, but it does not follow from this that it may not be liable to any person whose property has been injured, even though the road be ever so well constructed and operated.

For the protection of private rights the constitution declares that “no person's property shall be taken, damaged or destroyed for or applied to public use, without adequate compensation being made, unless by the consent of such person.” Const., art. 1, sec. 17.

This language is broader than that used in the former constitutions of this state, and was doubtless intended to meet all cases in which, even in the proper prosecution of a public work or purpose, the right or property of any person, in a pecuniary way, may be injuriously affected by reason of the thing being made thereby less valuable, or its use by the owner restricted by the public use to which it is wholly or partially applied, without compensation having been first made to the owner.

It is also not improbable that it was intended, by the language found in the present constitution, to meet and correct evils which had sometimes been thought to result to the property owner from a narrow and technical meaning sometimes put by courts upon the word “taken” used in the former constitutions of this state and in the constitutions of the most of the other states.

The word “property,” as used in the section of the constitution referred to, is doubtless used in its legal sense, and means not only the thing owned, but also every right which accompanies ownership and is its incident.

Thus considered, under the rules established by the great weight of judicial decisions, and opinions of elementary writers eminent for their learning, the facts of this case amount to a taking of private property for a public use. Cox v. Railway Co., 48 Ind., 178;Railway Co. v. Hartley, 67 Ill., 439;Harrington v. Railroad Co., 17 Minn., 218;Gray v. Railroad Co., 13 Minn., 315;Schurmeier v. Railroad Co., 10 Minn., 82;Pomeroy v. Railroad Co., 16 Wis., 644;Hinchman v. Railroad Co., 17 N. J. Eq., 78;Protzman v. Railroad Co., 9 Ind., 469;Ford v. Railroad Co., 14 Wis., 609;Kaiser v. Railroad Co., 22 Minn., 152; Railroad Co. v. Reed, 41 Cal., 257;Wager v. Railroad Co., 25 N. Y., 529;Grand Rapids Booming Co. v. Jarvis, 30 Mich., 321;Arimond v. Canal Co., 31 Wis., 316;Pumpelly v. Green Bay Co., 13 Wall., 181;Hooker v. N. H. & N. Co., 14 Conn., 146;Eaton v. B. C. & M. R. R., 51 N. H., 506; Dillon on Municipal Corporations, 711, 712, and citations; Cooley's Con. Lim., 676-688, and citations.

If, however, there has been no taking of the property of the appellee, within the meaning of the constitution, there can be no doubt that it has been damaged, if the evidence offered to support the averments of the petition be true.

The word “damaged” is evidently used in the sense in which the word “injured” is ordinarily understood.

By damage is meant “every loss or diminution of what is a man's own, occasioned by the fault of another,” whether this results directly to the thing owned, or be but an interference with the right which the owner has to the legal and proper use of his own.

If by the construction of a railway or other public work an injury peculiar to a given property be inflicted upon it, or its owner be deprived of its legal and proper use, or of any right therein or thereto; that is, if an injury, not suffered by that particular property or right only in common with other property or rights in the same community or section, by reason of the general fact that the public work exists, be inflicted, then such property may be said to be damaged.

Every government has the power to construct or to cause to be constructed public works, and in so...