Texas & P. Ry. Co. v. State

• Decision Date: 04 May 1932
• Docket Number: No. 7690.,7690.
• Citation: 52 S.W.2d 957
• Parties: TEXAS & P. RY. CO. v. STATE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

52 S.W.2d 957

TEXAS & P. RY. CO. v. STATE et al.^*

No. 7690.

Court of Civil Appeals of Texas. Austin.

May 4, 1932.

On Rehearing June 1, 1932.

Appeal from District Court, Travis County; J. D. Moore, Judge.

Proceeding by the Texas & Pacific Railway Company against the State and others. From the judgment, the Railway Company appeals.

Affirmed.

W. A. Keeling, of Austin, and T. D. Gresham and M. E. Clinton, both of Dallas, for appellant.

James V. Allred, Atty. Gen., and Geo. T. Wilson and R. W. Yarborough, Assts. Atty. Gen., for appellees.

BAUGH, J.

Two questions presented in this case are, first, whether the Texas & Pacific Railway Company owns in fee the title to its right of way across Ector county, Tex.; and, second, if it owns only an easement over said lands, whether under article 6317, R. S. 1925, it may extract the oil from underneath said right of way and use same in the operation of its trains. The litigation resulted from the discovery of oil in that county, and the issues here presented are based upon the action of the trial court in sustaining special exceptions of the state to the railway company's pleadings, and in excluding certain evidence offered by the railway company.

The first contention made by appellant is that the resolution of the Legislature of Texas, approved February 9, 1850 (Acts 3d Leg. c. 124), granted and conveyed to the United States in præsenti a railroad right of way in fee over the public lands of the state of Texas, to be subsequently located; and that the United States Congress, in chartering the Texas Pacific Railroad Company in 1871, vested such right of way in said federal corporation.

Appellant has very ably presented the historical background for its contention. It appears that the matter of a transcontinental rail route to the Pacific Coast had become a national demand in 1849, accentuated no doubt by the discovery of gold in California. In that year the President in his message to Congress urged that a survey of proposed routes be made with a view to granting federal aid, or, if advisable, to a construction of such road by the federal government itself. In December, 1849, the Governor of Texas, in his message to the Legislature, urged co-operation by the state of Texas in such enterprise, and the designation of a southern route through Texas. In consequence the resolution of February 9, 1850 (Acts 3d Leg. c. 124), was passed, the pertinent portions of which read as follows:

"Joint Resolution Authorizing the Government of the United States to Construct a National Railroad Through the Limits of the State of Texas, to The Pacific Ocean:

"Section 1. Be it resolved by the Legislature of the State of Texas: That the State of Texas hereby grants and guarantees to the United States the right of way through this State, for a National Railroad, to be located and constructed under the authority of an act of Congress, from the Gulf of Mexico or Mississippi River, to the Pacific Ocean, and hereby authorizes the officers, agents and contractors, acting under an act of Congress for that purpose, to locate, construct, use and control the said railroad; and such railroad may commence at such point in this State on the coast of the Gulf of Mexico, or may enter this State at such point on the eastern or northeastern boundary line of the State, and leave the same at such point on its western boundary as may be determined on by or under an act of Congress. * * *

"Sec. 2. Be it further resolved, that the State of Texas, agrees to extend to the United States all reasonable and proper facilities and co-operation in the construction of said road, and hereby declares that all public lands within one hundred yards of the center of the road, shall belong to and vest in the United States; and all locations, surveys and patents, made on the same, after the road has been definitely laid out, shall be void.

"Sec. 3. Be it further resolved, That should the line of said road commence at any point in this State on the coast of the Gulf of Mexico, or enter this State at any point on the eastern or northeastern boundary south of the thirty-fourth degree of latitude, and leave this State on its western boundary at the town of El Paso on the Rio Grande, or at some point on the said river not farther north than one hundred miles distant from the said town, the State of Texas in addition to the right of way and the grant of lands heretofore guaranteed and declared, doth hereby agree, that all public lands lying within ten miles from the line of one hundred yards from the center of the railroad above granted, shall be divided into sections of six hundred and forty acres each, or some less size when from the nature of the ground such may be more convenient; and that every alternate section shall belong unto and vest in the United States, the said alternate sections to be appropriated to the construction of and for the use and benefit of said road; * * * provided, the expense of laying off the sections and alternate sections, shall be incurred by the United States; and provided further, that if the government of the United States shall not have adopted this route for the construction of the road, by the fourth day of March, 1851, then, and in that case, this resolution shall cease, and have no force or effect.

"Sec. 4. Be it further resolved, That each alternate section is hereby reserved to the State, and shall not be subject to location; but shall be held and reserved to the use of the State, and subject to future disposition by the Legislature.

"Sec. 5. Be it further resolved, That in granting the provisions in this act, they are granted upon the express condition, that the State of Texas reserves the right to construct or authorize to be constructed, any other railroad within her limits which she may deem proper, which may connect with the main track of the railroad to be constructed by the United States, or by its authority."

Surveys were made by the federal government on this route in 1850, 1851, and 1852. In 1853 Congress directed the Secretary of War to make further surveys on several proposed routes, one of which was along the thirty-second parallel of north latitude, and in February, 1855, Jefferson Davis, Secretary of War, reported to Congress that the route along the thirty-second parallel was the most practical and economic route. In 1853 the Gadsden Purchase from Mexico was effected, primarily to afford an extension of such proposed route along the thirty-second parallel to the Pacific Coast. The intervention of the Civil War, however, deterred further action on this matter. On February 14, 1871, the Texas Legislature renewed its efforts and adopted another resolution (Acts 12th Leg., Joint Resolutions, c. 6) providing inter alia: "Be it resolved by the Legislature of the State of Texas, That the Congress of the United States is earnestly requested to pass a bill for the construction of a railroad from the eastern boundary of Texas to the Pacific Ocean, on or near the thirty-second parallel of latitude, as soon as possible, and to grant the same aid for the construction of this railroad that has been granted to secure the building of the Northern Pacific Railroad."

By act of Congress, approved March 3, 1871 (16 Stat. 573), the Texas Pacific Railroad Company was incorporated; section 8 of said act (page 576), providing: "That the right of way through the public lands be, and the same is hereby, granted to the said company for the construction of the said railroad and telegraph line. * * * Said right of way is granted to said company to the extent of two hundred feet in width on each side of said railroad where it may pass over the public lands. * * *"

Appellant's railroad was constructed in 1881, at which time the lands in Ector county were wild public lands of the state. When Texas entered the Union, it reserved to itself all of its public domain over which the federal government had no control and no power to make grants. Appellant contends, however, that by the resolution of February 9, 1850, the state made an unqualified grant out of its public domain to the federal government of right of way lands for a railroad, to be thereafter constructed by the federal government or under its authority;...