Galveston, H. & S. A. Ry. Co. v. De Groff

• Decision Date: 28 April 1909
• Citation: 118 S.W. 134
• Court: Texas Supreme Court
• Parties: GALVESTON, H. & S. A. RY. CO. v. DE GROFF et ux.

118 S.W. 134

GALVESTON, H. & S. A. RY. CO. v. DE GROFF et ux.

Supreme Court of Texas.

April 28, 1909.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Charles De Groff and another against the Galveston, Harrisburg & San Antonio Railway Company to enjoin the use of a city street for switching purposes. There was a judgment of the Court of Civil Appeals (110 S. W. 1006) affirming a judgment for plaintiffs, and defendant brings error. Reversed and rendered.

Baker, Botts, Parker & Garwood and Beall & Kemp, for plaintiff in error. Coldwell & Sweeney, for defendants in error.

BROWN, J.

We adopt the statement of the pleadings and the result of the trial made by the Honorable Court of Civil Appeals, as follows:

"Defendants in error, who will hereinafter be called `plaintiffs,' sued plaintiff in error, who will hereinafter be called `defendant,' for an injunction to restrain defendant, from using that part of Main street, in the city of El Paso, lying between the east line of Mesa avenue and the east line of Kansas street for yard and station purposes, and from switching cars, making up trains, and doing like things on said street within the limits mentioned. As grounds for the injunction, plaintiffs alleged, in substance: That they are, and for many years hath been, the owners of certain premises, situated in said city within 120 feet from that portion of Main street above described, upon which and as a part of said premises there is a large and commodious hotel, built and conducted in a manner calculated to secure the patronage of the traveling public, which would be secured and maintained were it not for the annoyance and disturbance caused by defendant's wrongful and unlawful use of said street between the points mentioned; that at all hours, day and night, and especially at night between the hours of 9 p. m., and 5 a. m., defendant is constantly switching and propelling heavy locomotives and cars along railway tracks unlawfully built and maintained along that part of Main street, which causes great noise, the ground to be constantly jarred, defendant's engines making loud, penetrating, and disagreeable sounds, the bells of the engines being constantly ringing, etc., to the great discomfort of persons stopping at plaintiffs' hotel, which disturb and are calculated to disturb the slumber of persons stopping at said hotel; that by reason thereof many guests who stopped there have left, and others stopping there will leave, and many persons, who would otherwise become guests, will not do so; that in the future, unless relief be granted to plaintiffs, many persons who would otherwise have stopped at said hotel will omit to do so on account of said acts of defendant; that by reason of the premises, the property which belongs to Mrs. De Groff, and the business of plaintiff, Charles De Groff, as a hotel keeper, has been greatly damaged; that such property and business will still be further damaged and render the premises valueless as a hotel and destroy such business of the plaintiff, Charles De Groff; that the damages plaintiffs have suffered and will suffer are not shared by the public at large; that such damages cannot be estimated in any fixed or approximately correct sum, and the injuries suffered are not susceptible of compensation in damages; that defendant threatens to continue its unlawful and injurious acts, and will do so unless restrained therefrom by the court; that plaintiffs have no adequate remedy at law, etc.

"The defendant answered by general and special demurrers, a general denial, and a special plea alleging, in substance: That it is a railway corporation created for the purpose of carrying freight and passengers, and had existed as such for over 25 years; that its road traverses almost the entire state of Texas, and is an important link in transcontinental routes between the Atlantic and Pacific Oceans; that under an ordinance passed by the city council of the city of El Paso in the year 1881, and by several amendments thereto, it acquired a right of way through said city over and upon Main street, with full authority to locate its tracks, switches, and spurs, and construct and maintain its depot and yards thereon, in order that it might fulfill the obligations imposed upon it by law as a common carrier of freight and passengers; that by virtue of the authority conferred by said ordinances and franchises, and with the consent of the city council of El Paso and abutting property owners it, at great expense, acquired by purchase real estate and property contiguous to and abutting on Main street, constructed and built, and has continuously maintained thereon, its passenger and freight depots, machine shops, and other improvements necessary and incident to the operation of its line of railway and the discharge of its duty to the public as a common carrier; that the location of its said property and of its tracks and other improvements thereon is shown upon a certain map sent up with the record as a part of the statement of facts in the case. Defendant further alleged: That by an ordinance passed by the city council of El Paso May 14, 1883, it was given the privilege and right to erect on any part of Main street any additional tracks of railway it might desire. That so much of the street as lies between Kansas and Stanton streets was by ordinance of the city closed and abandoned for the purpose and use as a street by the public. That every and all of the privileges, rights, and franchises were granted the defendant upon the express condition that the passenger depot to be built and maintained should not be at a greater distance from the main plaza than 660 feet; it being the intention of the city council that such depot should not be located from the present business center of the city a greater distance. That defendant thereafter located its yards and grounds, tracks, side tracks, and switches and built its machine shops, and has continuously maintained the same in strict conformity with the conditions and requirements of the city of El Paso, in the proper performance of its duties to the public. That any noise or inconvenience arising from the operation of its trains and switching its cars was only a reasonable exercise of the rights and privileges granted it by said city. That long prior to the time plaintiffs acquired or owned the premises, the Orndorff Hotel was located thereon, and the hotel business conducted by its then owner, without complaint of any inconvenience or annoyance caused to its patrons. That plaintiffs thereafter purchased said property with full knowledge that there would be some inconvenience and annoyance incident to the handling and operation of defendant's trains, cars, and engines over said tracks, and has acquiesced in the same for a period of about 10 years. That it was then, and is now, absolutely necessary to so handle its cars and conduct its business on Main street between the points mentioned. And that such injury or inconvenience as complained of by plaintiffs arises from causes necessarily incident to railway service in the conduct of defendant's railway business under the rightful exercise of its franchises granted by the laws of Texas and the ordinances of the city of El Paso.

"The case was tried before the court without a jury, and a decree was rendered perpetually enjoining and restraining the defendant from using that portion of Main street in the city of El Paso which lies between its intersection with the easterly line of Stanton street and its intersection with the easterly line of Mesa avenue for railroad yards and station purposes, and from making up in whole or in part any trains thereon, and from doing any switching thereon, and from causing its trains, engines, locomotives, and cars, or either, to stand thereon, subject to this provision: `Provided, however, this shall not in any way be construed as prohibiting passenger, freight or other trains coming in over the main line from the west, or such trains as have been made up and are departing for the west, passing over the switches and side tracks onto the main tracks within said limits, or from stopping for a time reasonably sufficient to throw switches for that purpose. It is expressly ordered by the court, however, that this judgment, and no part thereof, shall be construed as to apply to any tracks of defendant not situated on that portion of Main street which is herein described, and this judgment and injunction hereby ordered shall not apply to any ground or territory other than to that portion of Main street herein mentioned and defined.'"

The judge of the trial court filed conclusions of fact, which we condense in part and copy a portion, as follows:

On the 17th day of February, 1881, the city council of the city of El Paso adopted an ordinance by which it granted to the Galveston, Harrisburg & San Antonio Railway Company the right of way over a great number of the streets and alleys of the said city, which included Main and San Francisco streets and contained this provision: "Provided that the right of way herein granted to said company for its railway, shall (not) exceed five feet from each side of a center line of the track thereof, from the point where such track touched San Francisco street, to the southwestern boundary of the depot grounds as hereinafter defined and between which points no side tracks, switch or spur shall be constructed." On March 24, 1881, the said city adopted a second ordinance, by which it enlarged the right of way granted to the said railway company to the width of 16 feet and repealed the inhibition in the first ordinance against the building of said tracks, switches, etc., upon certain streets. On May 14, 1883, the said city council adopted a third...