Texas & P. Ry. Co. v. Gay

• Decision Date: 30 April 1894
• Citation: 26 S.W. 599
• Parties: TEXAS & P. RY. CO. v. GAY et al.
• Court: Texas Supreme Court

Page 599

26 S.W. 599

TEXAS & P. RY. CO. v. GAY et al.

Supreme Court of Texas.

April 30, 1894.

Certified questions from court of civil appeals of the second supreme judicial district.

Action by Nancy J. Gay and another against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals to the court of civil appeals. That court certified to the supreme court certain questions for its decision.

Finch & Thompson and Stedman & Thompson, for appellant. Ball, Wynne & McCart, for appellees.

STAYTON, C. J.

This action was brought by the wife and minor child of John M. Gay to recover from John C. Brown, as receiver for the Texas & Pacific Railway Company, damages for an injury received by him while in employment of the receiver, which resulted in his death. At the time the action was brought, John C. Brown was operating the Texas & Pacific Railway as receiver under appointment made by the circuit court of the United States sitting for the eastern district of the state of Louisiana, but pending the litigation the receiver was discharged. After the discharge of the receiver with pleadings setting up that fact, a judgment was rendered against him which, on appeal, was reversed. Brown v. Gay, 76 Tex. 444, 13 S. W. 472. After this the pleadings were amended, and thereby the Texas & Pacific Railway Company was made a defendant, but this did not occur until more than one year had elapsed after the death of John M. Gay. The pleadings show a state of facts which would have entitled John M. Gay to have maintained his action against the railway company for the injury had he lived; but, as it has been held that actions for injuries resulting in death could not be maintained against receivers under the law as it was when the injury and death in question occurred, questions have been certified to this court under pleadings and a judgment against the railway company which make them pertinent. The questions will be considered in their order:

"First. Did the circuit court of the United States for the district of Louisiana have jurisdiction to take possession, through a receiver, of that part of the road situated in the state and northern district of Texas?" The Texas Pacific Railroad Company was chartered by an act of congress approved March 3, 1871, by which it was "empowered to lay out, locate, construct, furnish, maintain, and enjoy a continuous railroad and telegraph line, with the appurtenances, from a point at or near Marshall, county of Harrison, state of Texas; thence by the most direct and eligible route, to be determined by said company, near the thirty-second parallel of north latitude, to a point at or near El Paso; thence by the most direct and eligible route, to be selected by said company, through New Mexico and Arizona to a point on the Rio Colorado, at or near the southeastern boundary of the state of California; thence by the most direct and eligible route to San Diego, California, to Ship's channel, in the Bay of San Diego, in the state of California." Act 1871, § 1. By the fourth section of the act the company was empowered "to purchase the stock, land grants, franchises and appurtenances of, and consolidate on such terms as may be agreed upon between the parties, with any railroad company or companies heretofore chartered by congressional, state or territorial authority, on the route prescribed in the first section of this act." The ninth section of the act provided for a grant of lands to the company for so much of its road as was to be constructed through the territories of the United States and the state of California. The twenty-second section of the act provided "that the New Orleans, Baton Rouge and Vicksburg Railroad Company, chartered by the state of Louisiana, shall have the right to connect, by the most eligible route to be selected by said company, with the said Texas Pacific Railroad at its eastern terminus, and shall have the right-of-way through the public lands to the same extent granted hereby to the said Texas Pacific Railroad Company; and in aid of its construction from New Orleans to Baton Rouge, thence by way of Alexandria in said state to connect with the said Texas Pacific Railroad Company at its eastern terminus, there is hereby granted to said company, its successors and assigns, the same number of alternate sections of public lands per mile in the state of Louisiana, as are by this act granted in the state of California to said Texas Pacific Railroad Company." The seventeenth section of the act required the construction of the road to commence "simultaneously at San Diego in the state of California and from a point at or near Marshall, Texas, as hereinbefore described, and so prosecute the same as to have at least fifty consecutive miles of railroad from each of said points complete and in running order within two years after the passage of this act; and to so continue to construct each year thereafter a sufficient number of miles to secure the completion of the whole line from the aforesaid point on the eastern boundary of the state of Texas to the Bay of San Diego, in the state of California, as aforesaid, within ten years after the passage of this act." Congress passed a supplementary act, which was approved on May 2, 1872, and the first section of that changed the name of the corporation to the "Texas & Pacific Railway Company." The fifth section declared "that the said Texas & Pacific Railway Company shall commence the construction of its road at or near Marshall, Texas, and proceed with its construction under the original act and this supplement, or in pursuance of the authority derived from any consolidation as aforesaid, westerly from a point near Marshall, and towards San Diego in the state of California, on the line authorized by the original act, and so prosecute the same as to have at least one hundred consecutive miles of railroad from said point complete and in running order within two years after the passage of this act; and so continue to construct each year thereafter, a sufficient number of miles, not less than one hundred, to secure the completion of the whole line, from the aforesaid point on the eastern boundary of the state of Texas to the Bay of San Diego in the state of California, as aforesaid, within ten years after the passage of this act; and the said road from Marshall, Texas, throughout the length thereof, shall be of uniform gauge." After providing for construction from San Diego eastward, the section contains the following: "Provided, that said Texas & Pacific Railway Company shall be and is hereby authorized and required to construct, maintain, control and operate a road between Marshall, Texas, and Shreveport, Louisiana, or control and operate any existing road between said points of the same gauge as the said Texas & Pacific Railroad; and that all roads terminating at Shreveport shall have the right to make the same running connections, and shall be entitled to the same privileges for the transaction of business in connection with the said Texas & Pacific Railway as are granted to roads intersecting therewith: provided further, that nothing herein shall be construed as changing the terminus of said Texas & Pacific Railway from Marshall as provided in the original act." The Southern Pacific Railroad Company was chartered by the laws of this state, and was empowered to construct, own, and operate a railway from the eastern boundary of Texas to El Paso. Sp. Laws 1852, p. 197; Sp. Laws 1856, p. 76; Sp. Laws 1860, p. 130. The Southern Transcontinental Railway Company was also chartered under the laws of this state, and empowered to construct a railway from a point on the eastern boundary of Texas to its western boundary. Sp. Laws 1870, p. 40; Sp. Laws 1871, p. 92. These corporations were authorized to consolidate with the Texas & Pacific Railway Company. Sp. Laws 1871, p. 489. Under this, and the act of congress before referred to, the consolidation of these roads was effected, and congress, by an act approved June 22, 1874, ratified the consolidation, and declared that the "roads so merged as aforesaid shall for that and all other purposes be deemed and taken to be a part of the said Texas & Pacific Railway, and shall hereafter be subject to all the provisions and limitations of the act of congress incorporating said company and of the supplement thereto."

These are the laws under and by virtue of which the Texas & Pacific Railway Company exists, and it is evident from these that the eastern terminus of that road is at the eastern line of the state of Texas, and that no part of it is in the state of Louisiana. It is true that the supplementary act, as well as the original, contemplated that, through some other road, connection between the terminus of the Texas & Pacific Railway and Shreveport, in the state of Louisiana, should be made, and to that end the later act required that company to make such a connection through a good road to be built, controlled, and operated by it, or by some existing road between those points of which it might be able to obtain control; but that act expressly declares that "nothing herein shall be construed as changing the terminus of said Texas & Pacific Railway from Marshall, as provided in the original act." Both acts proceed upon the seeming assumption that the town of Marshall was at the eastern boundary of the state of Texas; but in view of the questions submitted it is immaterial whether the terminus be at one place or the other, for they are both in this state. The original act evidently contemplated that there would be a connection between the eastern terminus of the Texas & Pacific Railway and the Mississippi river, through the New Orleans, Baton Rouge & Vicksburg Railroad, and to that end, and to secure that, provided for a grant to that company of public lands situated in Louisiana, but no grant of public lands was contemplated for any road the Texas & Pacific Railway Company...