Houston & T. C. Ry. Co. v. City of Dallas

• Citation: 84 S.W. 648
• Parties: HOUSTON & T. C. RY. CO. v. CITY OF DALLAS.
• Decision Date: 26 January 1905
• Court: Supreme Court of Texas

84 S.W. 648

HOUSTON & T. C. RY. CO. v. CITY OF DALLAS.

Supreme Court of Texas.

January 26, 1905.

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

Action for mandamus by the city of Dallas against the Houston & Texas Central Railway Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (78 S. W. 525), and defendant brings error. Reversed.

Baker, Botts, Parker & Garwood, R. De Armond, and W. J. J. Smith, for plaintiff in error. W. T. Henry and Jas. J. Collins, for defendant in error.

WILLIAMS, J.

Section 54 of the charter of the city of Dallas gave to the city council control and power over the streets, alleys, crossings, and highways of the city, and power to abate or remove all encroachments or obstructions thereon; to open, widen, extend, regulate, grade, pave the streets, and to protect same from encroachments and injury of any kind whatsoever. Section 59 conferred power to regulate, establish, and change the grade of all sidewalks, streets, and premises, and to require and compel the filling up and raising same. Section 113 gave authority "to direct and control the laying and construction of railroad tracks, turnouts and switches, and to require that they be constructed and laid so as to interfere as little as possible with the ordinary travel and use of the streets, and to require that they be kept in repair. To regulate the use of locomotive engines, to direct and control the location of cable and other street and railroad tracks, and all steam railroad tracks, and to require railway companies of all kinds to construct at their own expense such bridges, turnouts, culverts, crossings and other things, as the city council may deem necessary. To regulate the speed of all railroad trains within the city limits, and their stops at street crossings, and to require said companies to keep the streets through which they run in repair, and to light the same whenever deemed necessary, and to prescribe the kind of light to be used, and to levy special taxes or assessments against such roads for street improvements, the same as against property owners." Section 158 provided a method by which the city council was empowered to "grade, fill, raise, repair, macadamize, remacadamize, pave, repave, or otherwise improve" its avenues, streets, and alleys, and provided that all such improvements should be entirely at the cost of the city, except that the owners of railroads operated "on such street, avenue, or alley" were required to pay for improving the part of the streets between the rails and between the tracks and for two feet on each side of the rails, etc., to secure and enforce which payment a procedure is prescribed. On the 23d day of November, 1901, this action was begun by the city for a mandamus to compel the plaintiff in error, as respondent, to reduce its tracks in the city to the level of certain streets at crossings mentioned in the petition. The allegations are, in substance, that the respondent operates its road through the city approximately north and south; that the part of the track extending from Pacific avenue, on the south, to the corporate line, on the north, a distance of about a mile and two-thirds, is upon an embankment ranging from nine-tenths of a foot to four and seven-tenths feet high, causing the track to stand at a considerable elevation above the adjacent land; that numerous streets, including twelve which are named, cross the embankment and track, all of which are much used by the public; that at the crossing of each street the embankment is an obstacle and impediment to the free and convenient and safe and satisfactory use and enjoyment of the streets by the public for ordinary travel. The petition then gives the elevation of the track above the streets at each crossing, and proceeds to allege that it is essential to the public convenience and safety that at the crossing of such streets the track should be reduced to the grade of the street; that in pursuance of power granted in its charter the city council, on the 9th day of October, 1901, adopted the following ordinance:

"Be it ordained by the city council of the city of Dallas:

"Section 1. That all railroad tracks in the city of Dallas shall be laid and constructed and so kept and maintained as to interfere as little as possible with the ordinary travel and use of the streets crossed by such railroad track, or tracks, by the owners of such tracks, and at their expense.

"Sec. 2. That whenever and wherever any railroad track or tracks cross or intersect any street of the city of Dallas, the person, association, or corporation owning said track or tracks shall keep and maintain the same at a grade with the street on either side of the crossing, and whenever at any crossing with any street of the city of Dallas any railway track is either above or below the grade of the street crossed, such track or tracks shall, by the owner thereof, be reduced or elevated, as the case may be, to conform with the grade of the street intersected, and such crossing shall be made to conform to the grade of such intersected street entirely at the expense of the person, association or corporation owning the track or tracks crossing the street.

"Sec. 3. That after the track or tracks have been reduced or elevated to grade of the intersected street, as above provided, it shall be the duty of the owner of the track or tracks to place and maintain the crossing in such a condition as to interfere as little as possible with the ordinary travel and use of the street."

That the respondent, in disobedience and violation of said ordinance, continues to maintain its embankment and track as stated, and that the plaintiff has no other adequate remedy than a mandamus to compel a reduction of the grade, etc. The prayer was for a writ to compel the respondent to reduce its track to conform to the grade of the streets as required by the ordinance.

In its answer the respondent by general demurrer and special exceptions raised the following objections to the petition: (1) The ordinance set up is void for want of power in the city council to pass it, the provisions of the charter relied on as a grant of such power applying only to the laying and construction of railroad tracks after the passage of the charter and there being no allegation that this track was of this class. (2) The ordinance itself was not intended to apply to tracks already laid, but only to such as should be laid after its adoption. (3) The plaintiff sought to require respondent to reduce its grade, not only at street crossings, but between them, when the charter only applied to crossings. (4) That the change proposed by the city in the grade of the crossings is in reality an attempt on its part to regrade its streets, which is controlled by section 158 of the charter, requiring the city to pay its proportion of the expense thereof; whereas the city seeks to have the respondent make the change and pay the entire expense. (5) That such action would be a taking and damaging of respondent's property for no public use, and without compensation. (6) That the petition does not allege the respective grades of the streets with reference to each other or with reference to any other grade, nor show that plaintiff has ever furnished to respondent information of such grades so as to enable it to comply with plaintiff's demand.

The answer charged that the ordinance relied on by plaintiff was unreasonable and oppressive, and was an effort to take respondent's property without compensation, and without due process of law, and contained, in support of this charge, a statement of facts, which may be condensed as follows: (1) That the embankment is not a menace or danger to public travel, but the crossings over it are safer and more advantageous to the public than they would be if flush with the street. (2) That it owns its right of way and has operated its road, as now constructed upon the embankment, for 29 years; that the greater portion of the grade complained of was made and used at a time when the limits of the city did not embrace it, and when there were no streets across it; that afterwards the corporate limits had been so enlarged as to include it and streets then extended across it as it now stands, since which time it has used its track as constructed with the knowledge, acquiescence, direction, and consent of the city. (3) That a compliance with plaintiff's demand would require an expenditure of more than $50,000 for the actual work, and, in addition, respondent's traffic over its road would be suspended or seriously embarrassed and delayed, causing much more loss, the right of way being too narrow to enable respondent to so reduce its grade without suspending entirely all traffic over its track. (4) That compliance with the ordinance is impracticable, if not impossible, because (a) the grades of the streets are so different from each other (the difference being specified in the answer) that the track, if reduced to the grade of each crossing, instead of being reasonably safe and level, would form a series of undulations or alternating sags and elevations, rendering the operation of trains over it dangerous, if not impossible; (b) the proper construction of the crossing and grading of the street thereat would, in a manner specified, throw the surface water collecting in the streets and heretofore passing along the gutters in other directions upon the roadbed, making it a channel or sluiceway for the rain and storm waters, and rendering it unstable, insecure, and dangerous to life and property; the only means of preventing which would be the construction by respondent of a sewer, of the character designated in the answer, two miles in length, at a cost of $60,000. (5) That defendant owns its right of way fenced from adjoining property and abutting upon each side of the several streets, and that the proposed action of the city is an attempt to regrade its...