Houston & T. C. R. Co. v. Powell

• Decision Date: 15 January 1910
• Citation: 125 S.W. 330
• Parties: HOUSTON & T. C. R. CO. v. POWELL.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 330

125 S.W. 330

HOUSTON & T. C. R. CO. v. POWELL.^†

Court of Civil Appeals of Texas.

January 15, 1910.

Rehearing Denied February 5, 1910.

Appeal from District Court, Navarro County; L. B. Cobb, Judge.

Action by S. W. Powell against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Baker, Botts, Parker & Garwood, R. S. Neblett, and R. R. Owens, for appellant. Treadwell & Tarver and Richard Mays, for appellee.

RAINEY, C. J.

Appellee brought this suit against appellant to recover damages in the sum of $1,800 alleged to have been caused by appellant raising its roadbed across First avenue, in the city of Corsicana, thereby obstructing the street, which caused people living in the country north and northeast of plaintiff's store and of said city from passing in front of his store situated on said First avenue, and diverting the travel from that portion of said avenue, going to and from said city, causing loss of trade, decrease in the value of his lot, and loss of profits on the trade actually done. The appellant answered by general and special exceptions, general denial, and specially that in doing the work complained of it was acting under the order of the Texas Railroad Commission; that it promptly restored the crossing upon the completion of the work, and subsequently provided a subway crossing. A trial resulted in a verdict and judgment in favor of appellee for $350, and appellant, railroad company, appeals.

The following map shows the blocks, the streets, the situation of plaintiff's property, the way travel was diverted and line of railroad, etc., in that portion of the city that is pertinent to the question herein involved:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The evidence shows that appellee owned a lot of land on the south side of First avenue, about 200 feet east of where the railroad crossed First avenue, said crossing being just west of Seventh street. Appellant in attempting to comply with the Texas Railroad Commissioner's order to so construct its track that the Trinity & Brazos Valley Railway, which ran along Sixth street, just east of appellee's store, could cross under appellant's track at a point a short distance north of First avenue, raised its track across First avenue to a height that rendered said street at said point practically impossible for travel, and stopped work thereon for several months. During this time the city placed obstructions at said point which deterred any person from attempting to cross at said point First avenue was a regular thoroughfare for persons entering the city from the north and northeast. The main business section of the city is on Beaton street, and First avenue intersects Beaton street about two blocks north or where said business section begins. To reach the business section of said Beaton street, it is as near for parties coming into the city from the north and northeast to leave First avenue at Fifth or Seventh streets, go down to Second or Third avenues, and thence to Beaton Street, as it is to travel First avenue to Beaton street, thence to the business section. Travel was diverted at Fifth avenue, thence down said avenue to Second avenue, thence diagonally across one block to Third avenue, thence to Beaton street. The appellant's right of way is immediately west of Seventh street.

Section 17, art. 1, of our state Constitution, provides that "no person's property shall be taken, damaged, or destroyed for or applied to a public use without adequate compensation being made, unless by consent of such person." In discussing the meaning of the word "damaged," as used in the Constitution, Mr. Justice Stayton, speaking for our Supreme Court in Railway v. Fuller, 63 Tex. 467, says: "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." This language was quoted with approval by Mr. Justice Gaines in Railway Co. v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298, 22 Am. St. Rep. 42. It is therefore settled in this state that where, in the prosecution of a public work, no damage is done to property except such as is suffered by the same "community or section by reason of the general fact that the public work exists," no recovery can be had.

Appellee's store abutted on First avenue, which was obstructed by the appellant some 200 feet west from said store, but the street in front of said store and ingress and egress to and from the store was not interfered with further than the free passage along said street at the...