State v. Sugarland Ry. Co.

• Citation: 163 S.W. 1047
• Parties: STATE v. SUGARLAND RY. CO.
• Decision Date: 28 January 1914
• Court: Court of Appeals of Texas

Page 1047

163 S.W. 1047

STATE v. SUGARLAND RY. CO.

Court of Civil Appeals of Texas. Austin.

January 28, 1914.

Rehearing Denied February 25, 1914.

Appeal from District Court, Travis County; Charles A. Wilcox, Judge.

Suit by the State of Texas against the Sugarland Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with instructions.

B. T. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State. Lane, Wolters & Storey, of Houston, for appellee.

Statement of the Case.

RICE, J.

The Sugarland Railway Company was chartered in 1893 to run from Sugarland refinery to Arcola in Ft. Bend county, where it formed a junction with the Gulf, Colorado & Santa Fé and the International & Great Northern Railways, and, in accordance with said charter, had built and for many years operated its line between said points. Thereafter, during 1911, desiring to abandon and remove about 3½ miles of its track north from Arcola Junction, it applied to the Railroad Commission of Texas for this privilege, and obtained permission to do so; but the Railroad Commission, without notice to the company, rescinded its order. In the interim, however, the company had taken up and removed said part of its track, which the Commission then ordered it to replace, and, upon its refusal to do so, this suit was brought by the state to compel said company to restore its track, and operate its railway thereon, as well as to recover a penalty for noncompliance with said order.

The case was tried before the court without a jury, and, from an adverse judgment, the state prosecutes this appeal, assigning as error the refusal of the court to render judgment in its behalf. The company admitted removal of its track, as alleged, but sought to justify its action by pleading and showing that from Burnside Switch to Arcola Junction, from which point the same had been removed, the road had become in bad order, its ties had rotted, and its rails rusted, and there was practically no need for its operation because of the fact that it did not pay operating expenses so far as its local traffic was concerned; that it ran through a low, flat, undeveloped country, and that prior to its abandonment the company had procured a charter, and was now operating a branch road, extending from a point about 3 miles north of Arcola in a southerly direction, which branch connected with both the International & Great Northern and the Santa Fé Railways, and gave substantially the same service, so far as its connections were concerned, as the old line from Burnside Switch to Arcola Junction; that it ran through a fertile, developed, and productive country, furnishing railway facilities to about 1,000 people, whereas, the abandoned line served only one person, who was not left without railroad connections, because of the fact that he was adjacent to the line of the Gulf, Colorado & Santa Fé Railway; that prior to the abandonment of said track it had obtained an order from the Railroad Commission, permitting its removal, which had been effected before said order had been rescinded; that to comply with the last order would involve an outlay of $40,000, as well as $10,000 annually to maintain said line; that the local revenues derived from the operation of the abandoned line amounted to about $34 per annum. There was no allegation nor proof, however, showing the revenues arising from the traffic over its connecting lines via Arcola.

Opinion.

Before a railway company can be chartered in this state, the persons proposing to form such company shall adopt and sign articles of incorporation, which, among other things, shall contain a statement of the places from and to which it is intended to construct the proposed railroad, and the intermediate counties through which it shall extend, stating the time of commencement and the period of the continuation of the proposed corporation (subds. 2 and 4, art. 6408, Rev. St. 1911), which, when so prepared, adopted, and signed by its stockholders, shall be submitted to the Attorney General for his approval, and, when obtained, shall be filed in the office of the Secretary of State. In the instant case these requirements had been complied with, and the road had been actually built and for many years in operation between Arcola Junction and Sugarland, the termini named in its charter, when abandoned.

We have been unable to find any provision of law, and our attention has been directed to none, expressly authorizing a railway company in this state, under any circumstances, to abandon and remove its track; but, on the contrary, we find statutes which, by implication, at least, seem to indicate that no such power was ever contemplated. Article 6550, R. S. 1911, provides that "every railroad company organized in this state shall make an actual survey of its route or line for a distance of twenty-five miles on its projected route, and shall designate the depot grounds along said first twenty-five miles before the roadbed is begun, and no railroad shall change its route or depot grounds after the same have been so designated." (Italics ours.) Again, article 6625, Id., which provides for the organization of new companies by the purchasers of the franchises of old ones, contains a proviso to the effect that by such purchase and organization no right shall be acquired in conflict with the present Constitution and laws in any respect, nor shall the main track of any railroad once constructed and operated be abandoned or removed.

The question here presented, so far as we are advised, has never been passed upon by the courts of this state; but ample authority is found in the decisions of other states of the Union to the effect that prior to the location, establishment, and operation of a railway company it would have the right, within its discretion, to change or alter its route; but, when its route has been selected and designated, and it has actually constructed its road, and begun operation thereover, such right no longer exists. And this doctrine seems to be well settled, and in conformity with an almost unbroken line of decisions in this country as well as in England. See 2 Elliott on Railways, § 930, wherein, among other things, it is said: "Once located it is said a railroad is permanently located for the whole term of its existence, subject only to the exception of a specially granted, express legislative enactment authorizing a change or relocation."

In the note to Lusby v. Kansas City, Memphis & Birmingham R. R. Co., 36 L. R. A. 510, it is said: "With the exception of the Mississippi & T. R. Co. v. Devaney, 42 Miss. 555, 2 Am. Rep. 608, which is now repudiated in Lusby v. K. C., M. & B. R. Co., the authorities are unanimous that, in the absence of express statutory authority, a railroad company cannot relocate its road after it has been once constructed. The Devaney Case held that railroad companies have the power to relocate the line of their roads after their completion under the first location, and to condemn for the purposes of such relocation private property, if there is manifest necessity for the change, and no detriment thereby accrues to the public. But the uniform current of case law is the other way. Under the English practice there is no power to relocate the route, since it is definitely fixed in the statute creating the company. See statement of the English practice in North Missouri R. Co. v. Lackland, 25 Mo. 515. In Lakeshore & M. S. Ry. Co. v. Baltimore & Ohio C. R. Co., 149 Ill. 272 , it is said that it is well settled that, where the termini and general route of a railroad are prescribed by the charter of the company, leaving the determination of details to its discretion, the power of the company to fix the location of the road is exhausted after such discretion has been...