West v. Whitehead

• Decision Date: 15 February 1922
• Docket Number: (No. 6663.)
• Citation: 238 S.W. 976
• Court: Texas Court of Appeals
• Parties: WEST et al. v. WHITEHEAD et al.<SMALL><SUP>*</SUP></SMALL>

Page 976

238 S.W. 976

WEST et al. v. WHITEHEAD et al.^*

(No. 6663.)

Court of Civil Appeals of Texas. San Antonio.

February 15, 1922.

Rehearing Denied March 1, 1922.

Appeal from District Court, Kinney County; Joseph Jones, Judge.

Suit by W. E. Whitehead and others against W. Fred West and others. From order granting a temporary injunction, defendants appeal. Reversed and rendered.

Boyle, Ezell & Grover and Taliaferro, Cunningham & Moursund, all of San Antonio, for appellants.

Martin & Martin and G. B. Fenley, all of Uvalde, and Sonfield, Nall & King, of Beaumont, for appellees.

SMITH, J.

The Kinney & Uvalde Railway Company was chartered under subdivision 54 of article 1121 of the Revised Statutes, providing for the formation of private corporations in this state. The provision in question reads as follows:

"To build, maintain and operate a line of railroad to mines, gins, quarries, manufacturing plants, breweries and mills, and to condemn land necessary for the right of way for such road, from and between such mine, gin, quarry, manufacturing plant or mill, and the nearest line of railroad; but no corporation created under the provisions of this subdivision shall have the power to condemn private property until said corporation shall declare itself a public highway and common carrier, thus placing said road under the control of the railroad commission of this state."

In pursuance of the power of eminent domain given it in this act, the railway company instituted proceedings, under the general railroad condemnation statutes, to condemn for its use a right of way across tracts of land owned by W. E. Whitehead and another. W. Fred West and two others were appointed as commissioners to assess damages for the proposed use of the land, when Whitehead procured a temporary injunction restraining the commissioners from proceeding under their appointment, and the railway company from taking possession of the land over which the right of way was sought. This appeal is from that order. The injunction was granted, after notice, upon the verified pleadings of the parties, without hearing any evidence. Generally speaking, the only questions presented are: First, the constitutionality of the act quoted, in so far as it seeks to extend the power of eminent domain to corporations organized thereunder; and, second, whether or not, in the absence of an express provision in that act for that purpose, such corporation may resort to the method of procedure provided in any other statute in exercising the right of eminent domain.

The pleadings contain a great many allegations which in our opinion are immaterial to the questions raised, and which will not be noticed here. In general terms it may be said that the plaintiffs below base their objections to the operation of the act in question upon allegations that the railway company here involved purposes to run its line across an undeveloped section of the country, suitable only for pasturage purposes, and was organized solely for the purpose of transporting the product of an asphalt mine located at the terminus of the company's railway, and not for any public use; that it does not intend to comply with the law of the state governing common carriers; and that its financial resources are not sufficient to enable it to equip itself for general railroad purposes, or to pay the damages appellees may suffer as a result of the condemnation of their land. In short, it is contended that the company is organized solely for private purposes, and intends to devote its line of railway to purely private uses, and accordingly is not entitled to the right to exercise the power of eminent domain sought to be granted to it in the act in question.

It appears from the pleadings upon which the injunction was granted that the proposed line of railway is about eight miles long, extending from Cline, in Uvalde county, a station on the line of a general railroad, to a rock asphalt mine in operation in that county. It is conceded that the condemnation proceedings interrupted by the injunction were regular, and that that section of the statute under consideration is valid for all purposes, unless it is invalid in the provision extending to the corporations therein provided for the right to exercise the power of eminent domain, and that provision is attacked upon the one ground that it authorizes the taking of private property for a private, as distinguished from a public, use. The first question presented here, then, is whether or not under the facts disclosed in the pleadings the operation of the line of railway involved constitutes a private, and not a public, use.

We think it should be said at the outset that all allegations questioning the good faith or the intention of the incorporators of the railway company, with reference to the proposed method and purposes to be pursued in the operation of the road, should be disregarded. It must be presumed that in carrying out its objects and purposes the corporation will comply with the laws of the state. If the corporation has other intentions, or if it undertakes to evade the law, both the state and the citizens thereof are afforded adequate remedies by which obedience to the law may be enforced.

Declaring itself a public highway and common carrier, and expressly subjecting itself to the control of the State Railroad Commission, the company involved was chartered for the purpose of building, maintaining, and operating a line of railroad between the asphalt mine and Cline, a distance of eight miles. Under this charter the company is authorized, and under the law it is required, to accept, transport, and deliver to any point on its line, or to its connecting carrier, all commodities tendered it for such purpose by the public. It must furnish cars and other facilities, load, unload, and reload, receive, transport, and deliver, these commodities in accordance with such rules and regulations as the Railroad Commission may lawfully prescribe, and collect such charges for this service as that Commission may fix. Theoretically, then, the company's proposed operations constitute an ideal public use. But it is urged that as a practical matter the operation of the road will, after all, serve only a purely private use, in support of which contention appellees set out facts showing the short length of the road, the undeveloped character of the territory it traverses, and the assumed intention of the company to disregard its obligations under the law to serve the public, and perform no other function than to transport over its line the products of one particular asphalt mine, which is located at its terminus.

Of course it is true that the Legislature has no power to enlarge the right of eminent domain so as to authorize the taking thereunder of private property for other than public uses. It is presumed that the Legislature has this limitation in view when it enacts statutes extending such rights, and frames its acts in subordination to, rather than in violation of, the limitation, unless, indeed the infringement is apparent from the expressed purpose or obvious effect of the act. Borden v. Trespalacios Co., 98 Tex. 494, 86 S. W. 11, 107 Am. St. Rep. 640. Here the act in question provides for the incorporation of a railroad company, a public highway, and common carrier, subject to the same regulation by the state as are other corporations of that character, which are given the no longer questioned right of eminent domain. The purposes manifested by the terms of the act establish, conclusively, as we will show, a public use, to which end the private property of the citizen may be taken, if the citizen is compensated therefor in the manner provided by law.

It seems to be a settled rule that where the use for which property is sought to be taken under the power of...