Simons v. Galveston, H. & S. A. Ry. Co.

• Decision Date: 19 January 1933
• Docket Number: No. 9791.,9791.
• Citation: 57 S.W.2d 199
• Parties: SIMONS et al. v. GALVESTON, H. & S. A. RY. CO. et al.
• Court: Texas Court of Appeals

57 S.W.2d 199

SIMONS et al. v. GALVESTON, H. & S. A. RY. CO. et al.

No. 9791.

Court of Civil Appeals of Texas. Galveston.

January 19, 1933.

Rehearing Denied February 9, 1933.

Appeal from District Court, Jackson County; J. P. Pool, Judge.

Suit by George F. Simons and others against the Galveston, Harrisburg & San Antonio Railway Company and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Rose & Sample, of Edna, for appellants.

M. L. Cobb, Co. Atty., of Edna, for county et al.

Baker, Botts, Andrews & Wharton, of Houston, and Proctor, Vandenberge, Crain &amp Vandenberge, of Victoria, for Galveston, H. & S. A. Ry. Co. et al.

GRAVES, Justice.

Without complying with the procedure prescribed in R. S. 1925, arts. 6703-6705, and without prior written request from or notice to appellants, or any one else other than the two appellee railway companies, that such action would be taken, the appellee commissioners' court of Jackson county, pursuant to a transaction initiated and carried out between themselves and the railway companies alone, vacated, closed, and abandoned the public crossing over the latters' railroad on Lavaca street near the town of Edna at cattle guards 67A and B, with permission to the companies to extend their fences across the same "to the effect that all public travel may be excluded therefrom," which obstructing fences were at once erected, and, in consideration as well as in lieu thereof, accepted from the companies an easement for the purpose and opened another public crossing over their railroad about 1¾ miles west of Edna at the station thereon of Matilda, otherwise known as cattle guards 68A and B.

Appellants thereafter, in this proceeding against both the railway companies and the members of the commissioners' court, sought a mandatory injunction against all the parties requiring the removal of such obstruction therefrom, the reopening of the crossing at cattle guards 67A and B, and that the commissioners' court be required to henceforth permanently maintain and keep it open as a public one for the use of themselves and the public as such, contending that the closing thereof violated the rights vouchsafed to them by article 1, § 17, of the Constitution of the state of Texas, and by the Fifth Amendment to the Constitution of the United States, in that it took their property without adequate compensation therefor and without due process of law, since they were abutting owners on Lavaca street south of such closed crossing and near to the railway right of way.

The trial court, sitting without a jury, and after hearing the evidence for both sides, refused the injunction prayed for in a general judgment to that effect, filing no findings of fact or law in support thereof.

On the appeal, this court approves the adverse action thus taken below; in the first place, while appellants showed themselves to be abutting owners on the opposite sides of Lavaca street south of and 75 feet distant from the 100 foot wide right of way of the railway companies and of the closed crossing, they wholly failed to show that they had any private or other or different right in the crossing than that possessed by the general public, since their property did not abut upon the railway right of way or the crossing, being separated therefrom at all points by the 75-foot width of Hickory street; in other words, they merely showed that they, in company with all the rest of the public, had only enjoyed a right of travel over the crossing as a public way during the time it had been open and maintained by the county as such, and that they had acquired their several properties so adjacent to but not abutting on it while it was being thus used, but they did not establish that a private easement therein had ever inured to themselves by contract, or otherwise, as running with their lands as abutting upon it; wherefore, whatever damage, inconvenience, or impediment they suffered from its closing was different in degree only—simply resulting from being nearer to it—and not in kind from that cast upon the balance of the community in general.

They grounded their pleading for the drastic remedy invoked on the averment that there had been an irrevocable dedication of this strip to the public as a crossing, but the most they proved was a permissive use of and maintenance of it by the county as such for perhaps long enough—from 18 to 40 years —to have matured a prescriptive right to it as such in the general public at the time of this abandonment, which right they did not declare upon; but, even so, that merely gave them such rights in it as inhered in the public generally, and did not vest in them individual and private easements or privileges not subject to deprivation by the public authorities.

The undisputed evidence shows that no such dedication to the public had ever been made; on the contrary, that, in the transaction between Mrs. Flourney, the original owner of all the land involved, and one of the railway companies by which she conveyed to it the 800-acre tract of land upon which a part of the town of Edna was established, as well as the 100-foot wide right of way for its railroad through the town, the fee-simple title to this entire right of way, inclusive of the strip across it here involved, also of the additional strips for sidetracks, switches, and depot grounds, was expressly reserved in the railway company, and ever thereafter so remained.

The appended sketch, with the notations thereon, constructed from the maps in evidence, none of which ever delineated any crossing over the railroad right of way at Lavaca street, or elsewhere throughout its 100-foot width across the entire 800-acre town-site tract—on the contrary indicating that there were no crossings anywhere— gives an approximate idea of the relative locations of the appellants' different tracts of land with reference to this crossing, Lavaca street, the railroad right of way, the depot grounds, and the town of Edna proper:

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

It tends to confirm, too, the correctness of the above-made statements as to the physical facts surrounding those lands, the most material of which is that they merely abutted —directly opposite each other—that part of Lavaca street that lay south of Hickory street, which itself was 75 feet distant from the railroad right of way and this crossing over it, hence they nowhere touched either; indeed, only the appellant Simons' tract was located within the original 800-acre town-site tract; the 66 acres of the appellants Rose and Sample lying outside of...