Gulf, Colorado & Santa Fe Railway Co. v. Milam County , 90 Tex. 355 ( 1897 )

The Court of Civil Appeals for Third Supreme Judicial District has certified to this court the following statement and question:

"In February, 1895, the Commissioners Court of Milam County, by proper statutory proceedings, established a public road across the track of the Gulf, Colorado and Santa Fe Railway Company, and for that purpose condemned a strip of land thirty feet in width and one hundred feet in length, part of said railway company's right-of-way, and allowed said railway company thirty dollars damages.

"From the action of said court in allowing only thirty dollars damages the railway company appealed to the county court, which rendered a similar judgment, allowing the company only thirty dollars damages.

"The market value of the strip of land condemned was only thirty dollars, but the railway company contends that on account of the establishment of said public road across its track it will be compelled to do grading on both sides of the track, at a cost of $71.90; to put in cattle-guards (it having fenced its track), at a cost of $73.40; to put in two drain pipes, at a cost of $38.70; to put up a crossing signboard, at a cost of $5.00, two whistling-posts, at a cost of $3.30 each, and crossing planks, at a cost of $6.50.

"The trial court held as a matter of law that the railway company was not entitled to recover for any of these items of damage, and its right so to do is a material question presented for decision; and the Court of Civil Appeals for the Third Supreme Judicial District has ordered the question of said railway company's right to recover for said items of damage to be certified to the Supreme Court of Texas for decision.

"Therefore, if it be a fact that the establishment of the road across the railway company's track will compel the company to incur the expenses above enumerated, is the county liable therefor as part of the compensation allowed by the Constitution when private property is condemned for a public use?"

The county was not required by the Constitution and laws of this State to pay to the railroad company the items of damage claimed by it as stated above.

The duty of railroad companies in regard to the crossing of public highways over their tracks, is prescribed by the following article of the Revised Statutes:

"Article 4435. It shall be the duty of every railroad company in this State to place and keep that portion of its road-bed and right of way over or across which any public county road may run, in proper condition for the use of the traveling public, and in case of its failure to do so for thirty days after written notice given to the section boss of the section where such work or repairs are needed, by the overseer of such public road, it shall be liable to a penalty of $10 for each and every week such railroad company may fail or neglect to comply with the requirements of this article, recoverable in any court having jurisdiction of the amount involved, in a suit in the name of the county in which the cause of action accrued."

In the exercise of its police power the Legislature had the authority to require railroad companies to make and keep in repair the crossings of public county roads over and upon their railroads and their right-of-way. Railway v. Rowland, 70 Tex. 307 [70 Tex. 307]; State v. Railway, 45 N.W. Rep., (Neb.) 469; Railway v. Commissioners, 79 Me. 386; Railway v. Deering, 78 Me. 61.

The law required this railroad company to place and keep in repair that portion of its road and right-of-way embraced in the county highway at the point of intersection, and in the discharge of that and other duties imposed upon it by the law, the railroad company might be compelled to do all of the things for which it claimed damages in this case. But it cannot be held under the statute that the county must compensate the railroad company for doing those things which the law required it to do, although that duty arose out of the fact that the county highway was laid out across the railroad.

Counsel for the appellant in this case admits that after the crossing was once constructed the railroad company must keep it in repair. The statute says that the railroad company shall place it in a safe condition and shall keep it in such condition, and this, in the absence of other provisions, necessarily imposes upon it the duty of constructing the crossing in the first instance, as well in those cases where the county road is laid out subsequently to the building of the railroad, as in cases where the county road existed before the railroad was constructed.