Rio Grande R.R. Co. v. City of Brownsville

• Citation: 45 Tex. 88
• Parties: THE RIO GRANDE RAILROAD CO. v. CITY OF BROWNSVILLE.
• Decision Date: 01 January 1876
• Court: Supreme Court of Texas

45 Tex. 88

THE RIO GRANDE RAILROAD CO.

v.CITY OF BROWNSVILLE.

Supreme Court of Texas.

1876.

APPEAL from Cameron. Tried below before the Hon. W. H. Russell.

The facts are fully stated in the opinion.

E. J. Davis, for appellants.

This is a case of an injunction granted at the suit of the city of Brownsville, against the Rio Grande R. R. Company in regard to the use of a street in that city for the railway. The injunction, on hearing of the case, was made perpetual.

There is no assignment of errors in the record of this case, but it is a case where the errors of the lower court are apparent from the record, and go to the foundation of the right to sue, of plaintiff, (appellee.)

It seems that the city corporation, on August 7th, 1871, by ordinance, granted the railroad the right of way on any one of the streets it might select, including the Levee street to the river. Afterwards, in January, 1873, and when the railroad was about building its road along the street it had selected, the corporation repealed its aforesaid ordinance, and thereupon, the railroad having disregarded the repeal, applied for this injunction.

The court below was clearly in error in granting and making perpetual this injunction. There may be some doubt whether the city council, without legislative permission, could grant the use of any of the streets to the railway, but it clearly could by permission of the Legislature of the State. (See 2d Dillon on Municipal Corporations, secs. 555 to 564; 29th Ills., 279, 289, and numerous cases cited.) The Legislature of Texas, by sections 16 and 17 of act of April 10, 1858, gave this permission, and even authorized the right of way without consent of the corporation. The reasons given by the corporation for withdrawal of their consent are flimsy; and it is suggested that this withdrawal was a mere nullity, as they had no warrant of law or fact for their action.

No counsel for appellee.

MOORE, ASSOCIATE JUSTICE.

The importance of the questions involved in this case would have well justified a more thorough and careful preparation of the record than it seems to have received. The judgment entry recites that the motion to dissolve the injunction was submitted to the court on affidavits, and that the case on its final hearing was decided by the court--a jury having been waived--“on the petition, answers, affidavits, and evidence offered” by the parties. Yet neither the affidavits nor the matters deposed to in them are incorporated into or made part of the statement of facts. There are a number of affidavits copied in the transcript, but they are in no way identified, so as to warrant our saying that they are the same referred to in the judgment entry. The appellant has omitted to file an assignment of errors, and no appearance is made in this court for appellee. The case consequently has been submitted by appellant without an assignment of errors, and without objection to it on this account by appellee.

It is the practice of the court when cases are thus submitted to exercise its discretion, and dismiss them for want of an assignment of errors, or to consider and decide such errors as are plainly apparent on the face of the record, which go to the foundation of the action. We think the ends of justice will be best subserved by taking the latter course in this case.

By the judgment, appellant is perpetually restrained and enjoined from any further construction of its road in and along any of the streets and alleys of the city of Brownsville, from appropriating or attempting to appropriate any of said streets or alleys to the use of its railroad, and from running any locomotive or railroad car over or on any of the streets or alleys within the limits of said city, as set forth in appellee's petition.

The grounds upon which appellee's action is founded, and upon which the judgment is rendered, are, 1st. That appellant was only by its charter “to construct its road as far as the city limits of the city of Brownsville.” 2d. Said company had no authority to come within the limits of the city of Brownsville; and in assuming the right to do so, it was acting in defiance of the ordinances of the city. That no agreement had been made by appellant with appellee for such appropriation of said streets and alleys, nor had appellant paid or offered to pay appellee anything for such privilege.

If it plainly appears from the record that the judgment cannot be supported upon either of these grounds, it has no foundation upon which to rest, and must be reversed, notwithstanding appellant's failure to file an assignment of errors. It is to be observed, however, that the judgment will not be reversed in such case for mere technical errors in the form and manner of enforcing a valid cause of action of which the court has jurisdiction, or in the rulings of the court on questions arising during the progress of the trial, which relate to the enforcement and maintenance of the action or defense, and which do not go to its essential foundation and merits.

A corporation being a mere creature of law is endowed with and can lawfully exercise only such powers and functions as are conferred upon it by its charter or with which it has been otherwise empowered by law. If, therefore, appellant was only authorized to construct its road to the limits of the city of Brownsville, by its entry within the city and location and construction of a portion of its road in and along its streets, and digging up and defacing the same, so as to appropriate them to its use, thereby blocking up and obstructing their use by the general public, it has unquestionably been guilty of a trespass, and subjected itself to the penalty of the law. It seems to be the better opinion, however, that it is the general, rather than the local public, to whom the streets and other public places belong. And therefore whether the technical fee be in the adjoining owner, in the original proprietor, or in the municipality, in trust for public use, any unauthorized obstruction of the public enjoyment is an indictable nuisance or a wrong for which relief may be had by the proper officers of the State in its name, by bill in equity for injunction, or by other appropriate action or proceeding. (Dill. Municipal Corp., sec. 520.)

But it has been held that when the power and authority to control and surpervise its streets is conferred on the municipal corporation, it may, in its corporate name, institute appropriate judicial proceedings to prevent or remove such obstructions. (Id.) And as it does not plainly appear that such power is not conferred by its act of incorporation on appellee, we cannot say that it has not the right to institute and maintain in its corporate name a suit of this character.

Whether the facts alleged in the petition show that ample remedy for the alleged injury cannot be had at law, or justify the interposition of a court of equity and the granting of a writ of injunction, would, perhaps, present a more serious question, if the case was before us on an assignment of errors. (Dunning v. Aurora, 40 Ill., 481;Higbee v. Railroad Co., 20 N. J. Eq., 435;Railroad Co. v. Pruden, Id., 530;White v. Flannigan, 1 Md., 525; Elwell v. Greenwood, 26 Iowa, 377;People v. Vanderbilt, 26 N. Y., 287.)

But taking it for granted that the city of Brownsville may maintain a suit in its corporate name against appellant for obstructing its streets by appropriating and using them to construct a part of its road within said...