Gulf, C. & S. F. Ry. Co. v. Rowland

• Decision Date: 20 March 1888
• Citation: 7 S.W. 718
• Parties: GULF, C. & S. F. RY. CO. v. ROWLAND.
• Court: Texas Supreme Court

Page 718

7 S.W. 718

GULF, C. & S. F. RY. CO. v. ROWLAND.

Supreme Court of Texas.

March 20, 1888.

Appeal from district court, Burleson county; J. B. McFARLAND, Judge.

Action by J. C. Rowland against the Gulf, Colorado & Santa Fe Railway Company to recover the penalty provided in Texas act of March 23, 1887. Defendant appeals from a judgment for plaintiff.

J. W. Terry, for appellant. Broaddus & Banks, for appellee.

GAINES, J.

The decision of this case depends upon the determination of the question of the constitutionality of the act of March 23, 1887, which provides that all railroad companies which had theretofore or which may thereafter "fence their right of way may be required to make openings or crossings through their fence and over their road-bed, along their right of way, every one and a half miles thereof;" and, "if such fence shall divide any inclosure, that at least one opening shall be made in said fence within such inclosure." Laws 20th Leg. 39. Appellee was the owner of an inclosure through which appellant had its road and fenced its right of way; and having given notice to construct a crossing in his inclosure, and the company having failed to comply with his demand, brought suit to recover the penalty provided by the statute, and recovered a judgment. The facts were admitted as alleged in the petition and answer. From the answer it appears that the company was incorporated by a special law of the legislature passed in 1873, and that since the adoption of the constitution of 1876 and the Revised Statutes its charter had been several times amended, in accordance with the provisions of the latter relating to the amendment of the charters of railroad corporations. It also appears that in 1880 appellee conveyed to appellant the right of way through his inclosure, by deed, without any reservations or conditions whatever, and that in the same year appellant constructed its road, and fenced it as required by the laws then existing.

Under the law which existed at the time the right of way was conveyed, it was the duty of the railroad company to fence its track; and it becomes unimportant to inquire what were the rights of the parties with respect to crossings over the railroad track in the inclosures, after the conveyances were executed, and before the passage of the law in question. Our previous statutes contain no provision in reference to what is now commonly known as "farm crossings," and we must resort to the general principles of the common law in order to determine the question. In the first place, we are of opinion that the owner of inclosed land, who has granted the right of way to a railway company by deed, must be held entitled to such crossings over the railroad track as are reasonably necessary for the use of the premises inclosed. It is elementary law that a vendor who conveys to another land which is surrounded by the vendor's other land impliedly grants a right of way over the land which is not conveyed, (Washb. Easem. 233;) and it is held that "the same rule applies when the grantor conveys land surrounding a parcel retained by him," (Brigham v. Smith, 4 Gray, 297; Seymour v. Lewis, 13 N. J. Eq. 444.) This is upon the doctrine that the grantor impliedly reserves a way of necessity over the premises conveyed; and the principle applies with equal force to the owner of a farm who grants a right of way through his inclosure to a railroad company, or from whom the right of way is legally condemned for such a purpose. From the very nature of the transaction it is not to be presumed that the owner, in the first case, intended by his grant to cut off access from one part of his inclosure to another; or, in the second, that the legislature, in authorizing the condemnation, intended to bring about such a result. Railroad Co. v. Bost, 2 Will. § 386. In case either of a grant or a condemnation it is the right of the owner of the land to demand crossings; but in the absence of some stipulation in the contract, or of some proposition in the condemnation proceedings, we do not think it the duty of the railroad company to put them in at its own expense. It is generally held, and especially by the more recent authorities, that, in the absence of a statute making it the duty of the corporation to provide farm crossings, the expense of constructing and maintaining them is to be allowed the owner as a part of the damages for condemning the right of way. Railroad Co. v. Gough, 29 Kan. 94; Railroad Co. v. Kregelo, 32 Kan. 608, 5 Pac. Rep. 15; Chalcraft v. Railroad Co., 113 Ill. 86. Judge Redfield in his work on Railways, written before the decisions in the cases cited: "And the tendency of the more recent decisions is sensibly in this direction; and we might add, without offense, that in our judgment it is the only sensible direction the decisions could take, and we have always expected them to take such direction in the end, however late it may come." 1 Redf. R. R. 510. See, also, Railroad Co. v. Moffatt, 6 Cal. 74; 3 Suth. Dam. 444, 445. Such is also the ruling of our court of appeals in the case of Railroad Co. v. Bost, above cited; and it is to be remarked that the element of damages in condemnation proceedings by railroad companies is a matter peculiarly within the cognizance of that tribunal. The decision of this court in Railway Co. v. Pape, 62 Tex. 313, is in accord with the principles announced in the cases cited. These rulings are evidently founded upon the doctrine that, in the absence of a statutory provision upon the subject, the law gives a right to the owner of the farm to have crossings, but imposes upon him the expense of their construction and maintenance; and we think it clear that one who grants a right of way by an absolute deed, without any stipulation in this regard, has precisely the same rights against his grantee as if his land had been legally condemned, and no more. It must therefore be presumed that, when he made the deed, he received compensation for the prospective expense of making and keeping in repair the necessary crossings over the track of the railway, and the inconvenience resulting to him from the construction and operation of the railroad. It follows from the principles announced that, there being no law requiring railroad companies to make farm crossings at the time appellee executed his deed, the company is presumed to have indemnified him for the expense of constructing and keeping in repair all necessary crossings within his inclosures.

We come, then, to the question of the power of the legislature to require of the railroad companies to put in crossings at their own expense after having compensated the owner for the burden imposed upon them by the necessity of such construction. It is claimed that the statute under consideration was but a lawful exercise of the police power of the legislature to require railroad corporations to fence their track, has been universally upheld, and has been expressly affirmed by this court. Railway Co. v. Childress, 64 Tex. 346, and cases there cited; Humes v. Railway Co., 82 Mo. 221; Hines v. Railway Co., 86 Mo. 629; Wilder v. Railroad Co., 65 Me. 332; Quackenbush v. Railroad Co., 62 Wis. 411, 22 N. W. Rep. 519; Railway Co. v. Mower, 16 Kan. 573; Sawyer v. Railroad Co., 105 Mass. 196, and cases cited in Tied. Lim. Police Power, 597, note 1. In speaking of our statute on this subject, this court, in the case above cited from our Reports, says: "The object of the statute was to compel them (the railroad companies) to fence their tracks for the purpose of preventing damage to live-stock, and for the still more important purpose of protecting the lives and limbs of passengers upon their trains." Laws made for such purposes are clearly within the scope of the police power or authority which it is held the legislature has no right, by charter or otherwise, to give or bargain away. Regulations imposed upon railroad corporations requiring the ringing of bells, the blowing of whistles, the constructing of crossings at the intersection of public highways, and the maintenance of cattle-guards, having in view similar objects, have been uniformly sustained as a proper exercise of a power impliedly reserved in granting the corporate franchises, and hence not in conflict with that...