McCammon & Lang Lumber Co. v. Trinity & B. V. Ry. Co.

• Decision Date: 04 January 1911
• Citation: 133 S.W. 247
• Court: Texas Supreme Court
• Parties: McCAMMON & LANG LUMBER CO. et al. v. TRINITY & B. V. RY. CO.

133 S.W. 247

McCAMMON & LANG LUMBER CO. et al. v. TRINITY & B. V. RY. CO.

Supreme Court of Texas.

January 4, 1911.

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

Action by the McCammon & Lang Lumber Company and others against the Trinity & Brazos Valley Railway Company. From a judgment (131 S. W. 85) affirming a judgment dismissing the cause on demurrer, plaintiffs bring error. Reversed and remanded.

Richard Mays, for plaintiffs in error. Andrews, Ball & Streetman and McClellan & Prince, for defendant in error.

WILLIAMS, J.

This is an action by plaintiffs in error for an injunction to restrain the defendant in error from constructing its track, which is to be that of a commercial railway for the carriage of passengers and freight, along a public street and alley in the city of Corsicana. A general demurrer to the petition was sustained, and the cause was dismissed by the district court, whose action was affirmed by the Court of Civil Appeals.

The facts alleged on which the questions of law depend may be stated very briefly. Plaintiffs, as lot owners, are the owners in fee of the land over which the street and alley run and have, abutting thereon, business houses in which they carry on their several businesses for access to and egress from which the street and alley are essential. The allegations are full to the effect that the intended construction would be to appropriate the street and alley to the exclusive use of the defendant for a railroad. The defendant has acquired no other right to occupy the street and alley with its track than legally results from its charter as a railroad company, and the assent thereto of the proper authorities of the city, properly given.

The contention of counsel for the plaintiffs is that the proposed use of the street and alley would be a taking of their property without compensation first paid as required by the Constitution. This is denied by counsel for defendant, who insist that such use of property already dedicated to such purposes would not be a taking of it and would, at most, be only a damaging of plaintiffs' abutting lots for which compensation in advance is not required. The decision, therefore, necessarily depends on the question whether or not the petition shows a threatened "taking." While the Constitution provides that, without consent of the owner, his property shall not be "taken, damaged or destroyed" without compensation, it further says that, when it is taken, "compensation shall be first made or secured by a deposit of money." The distinction is thus made by the Constitution itself between taking and damaging, etc., which becomes important when the aid of equity is invoked to prevent action merely threatened. If such action will constitute a taking, the facts that it is without consent and that compensation has not been made render it unlawful, so that the property owner has the right to prevent it by injunction. If it will constitute only a damaging, the attempt is not necessarily unlawful merely because compensation is not made in advance; and, if equity will prevent it at all, it will do so only upon the showing of additional facts. It is unnecessary to discriminate between the street and the alley as the decision will apply to both.

It should require only a proper regard for plain physical facts to bring the mind to the conclusion that the location of a railroad, like that of defendant, upon land in which the public have only the easement of a highway and another has the fee, is a taking of that part of the land occupied by the track, at the very least, and hence a taking of property of the owner of the fee. No one disputes that this is the legal effect of such an appropriation of land not burdened with such an easement, for by the construction and use of the railroad the land is actually occupied and, necessarily, to a greater or less extent, the owner is excluded from that complete and exclusive use and control to which his ownership entitles him. Is it otherwise, except in degree, when, instead of only one, there are two interests in the soil to be considered, the public easement and the fee? Is not the land appropriated and used in that case in the same way and for the same purposes as in the other? In both instances the railroad company actually occupies and uses the soil itself in the assertion of a right of way in and over it. Is there a taking in one instance and not in the other? To make so fundamental a distinction is to deny to the visible facts their necessary consequence. Where, before such occupation of the street, the public, including the owner of the fee, had the use of the highway equally and in common, unimpaired by any appropriation of any part of it to an exclusive use, after such occupation the part actually occupied is to a large extent withdrawn from other uses than those of the railroad company. It is true that such a taking is not entirely from the owner of the fee. The easement of the public is also invaded and taken, at least, to the extent that the highway is actually occupied; but to that extent also the soil belonging to the owner of the fee is taken. The legally authorized consent of the public to such use of the easement makes it lawful, but does not make it any the less a taking, nor justify the taking of that which does not belong to the public—the fee. It is true, also, that the appropriation of part of the land in a street as a way for a railroad does not so completely exclude the public from its use, theoretically at least, as does such an appropriation of land unaffected by any such public use; for the public may still enjoy the street, as best they can, consistently with the presence of the road. As one of the public, the owner of the fee may participate in such enjoyment of the easement, but his use of the property in his private right is as fully excluded and the land is as completely appropriated to the use of the road as if there were no easement. The fee in the land is not as valuable to him as if it were not burdened with the street, but nevertheless it is property which cannot be taken without compensation first made or secured. If the easement of the street should come to an end, the fee would remain burdened only by the easement of the railroad right of way, and this lays bare the fact that the private property in the street is diminished to the extent of such right of way. In such situations the entire estate is divided into two interests, the easement of the public and the fee of the private owner, and the construction and use of a railroad over it is as much a taking of the corporeal property as if there were but one interest.

The propositions on which counsel for defendant based the argument that only a damaging and not a taking is threatened would not, if they were sound, tend to establish that conclusion, but rather the one that the taking would be rightful without compensation. Stated shortly, those propositions are that the original dedication of the land was for all the purposes of highways, and that the use of it for a railway is one of such purposes. The conclusion sought to be drawn is, not that such use without compensation is authorized as one to which the owner has consented, but that it is not a taking as distinguished from a damaging. The conclusion has no connection with the premises. If it were true that the dedication authorizes the use of the street for the purposes of commercial railroads, it would follow that such a...