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

• Decision Date: 29 March 1911
• Parties: POWELL v. HOUSTON & T. C. R. CO.
• Court: Texas Supreme Court

135 S.W. 1153

POWELL v. HOUSTON & T. C. R. CO.

Supreme Court of Texas.

March 29, 1911.

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

Action by S. W. Powell against the Houston & Texas Central Railroad Company. From a judgment of the Court of Civil Appeals (125 S. W. 330) reversing a judgment for plaintiff, plaintiff brings error. Reversed, and judgment remanded to the District Court for another trial.

Treadwell & Tarver and Richard Mays, for plaintiff in error. Baker, Botts, Parker & Garwood, R. S. Neblett, and R. R. Owens, for defendant in error.

BROWN, C. J.

We copy this statement of the evidence from the opinion of the Court of Civil Appeals:

"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 Commission'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.

"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 point of obstruction. There was a street immediately west of the block in which appellee's premises were situated, and between the obstruction and said premises, and this and other streets running north and south and east and west, all open to travel, which gave him and that section free access to all parts of the city, and the only interference, as before stated, to travel was the obstruction on First avenue caused by appellant, and this obstruction did not increase the distance to the main part of town for the appellee or those living in that section, nor those living in the country to the north and northeast. The obstruction only caused an inconvenience in reaching that portion of First avenue lying west of the obstruction to those living east thereof, and they were only inconvenienced by having to travel the distance of around one block."

We add to the statement as made by the Court of Civil Appeals that the plaintiff below alleged in his petition that the work was prolonged an unreasonable time, beyond what was necessary to do it, during which time the crossing was impassable, which caused damage to his business. He testified to facts from which a jury might have concluded that his trade was greatly lessened, causing damage. Plaintiff testified that before the raising of the grade his property was worth $1,300, and since that crossing was raised it was worth one-third less.

Article 1, § 17, of our state Constitution as it is applicable to the facts of this case may be read thus: "No person's property shall be * * * damaged for * * * public use without adequate compensation being made, unless by the consent of such person." Does the evidence show such damage to the plaintiff's property as comes within the protection of the above section of the Constitution? We condense and restate the facts which the evidence tends to establish. The railroad was constructed and operated across a street in the city of Corsicana about 200 feet from a lot abutting on that street which plaintiff owned and upon which he had a storehouse where he transacted his business as a merchant. [1] Under a contract with the Brazos Valley Railroad, approved by the Railroad Commission, the defendant in error raised its grade at that point about two feet, and thereby obstructed the crossing for a time, and that it unnecessarily delayed for several months the completion of the work by which the travel of persons over the said street from points beyond the...