Fort Worth Street Railway Co. v. Queen City Railway Co. , 71 Tex. 165 ( 1888 )

Walker, Associate Justice.

It is alleged in both bill and answer that the reservation or donation upon which the rights claimed by the complainant attach, is owned by the Texas & Pacific Railway Company. It does not appear that the right claimed is upon what the statutes of the State denote as the “right of way,” nor is any limitation upon the ownership alleged or shown. It appears that the right claimed was the subject of negotiations and contracts between the Texas & Pacific Railway Company and complainant and persons acting in its behalf; that under these contracts the complainant paid valuable considerations; that the right was conceded to appellant under onerous conditions; that the contracts, as they related to an interest in the land, were duly recorded in June, 1882; that complainant expended one-fourth of the cost of making the roadway, and at once occupied it under said contract; and, that further, the defendant, having only the conceded right to occupy Front street, was interfering with said right. These allegations gave the right to the injunction.

The answer, taken as a whole, can not be understood as intended to assert that the locality called Front street included the reservation or any part of it. Nor can the several denials in the answer be considered as applicable to the specific acts charged in the bill and not directly denied. The denial of the power of the Texas & Pacific Railway company to make said contract, of the power of the officials to make it, and that no exclusive right was in fact granted, can be regarded only as calling in question the legal effect of the several detailed acts charged in the bill. The same questions are raised in the exceptions. Affirmatively the answer alleges that the acts of the Texas & Pacific Railway Company, in moving its depot, and in constructing the roadway which the tracks of the complainant occupy, as a necessary means of access to the depot, was a dedication in law of the roadway to the public — thus negativing the exclusive right claimed in the bill.

The conceded power in the Texas & Pacific Railway to dedicate this roadway includes in it, as an incident of ownership, the power to refuse to make such or any dedication, and the power to grant an easement upon it; and to make a limited or restricted grant to public use.

The necessity for such roadway would be subordinate to the bill of rights (sec. 17) providing that “no person’s property shall be taken * * * or applied to public use without adequate compensation being made to the owner, unless by the consent of such owner,” The easement granted to complainant is not inconsistent with the rights of the public in passing to and from the depot, and the dedication, if made at all, was subject to the easement already owned by complainant.

This limitation upon any right the public might acquire was evidenced by the contemporaneous recorded instruments made to and by the Texas & Pacific Railway Company, and by the actual occupancy of the roadway and user under the grant. These facts were notice that but a restricted use was intended by the grantor or enjoyed by the public; and precluded the conclusion against complainant that the roadway was dedicated to the public use.

We are not advised of any limitations upon the ownership by the Texas & Pacific Railway Company conflicting with the grant of such easement upon lands not the “right of way.” (Rev. Stats., arts. 4211, 4212, 4213.) With these facts alleged in the bill and not denied in the answer, we can not hold that such dedication is shown against the complainant.

In defense it is urged that the contract is against public policy—is a monopoly. The right is but an easement granted by the owner in fee—no more a monopoly than ownership of land. Like any other estate in land, it is subject to the law; can be taken for public use on process of law. The franchise of complainant itself is a creation of the law, and subject to it.

It is not shown that the city ever recognized the roadway as a public street—in fact the burden of keeping it in repair is shared by complainant. So far as shown in the record, the rights of the public are not involved in the controversy. They have not been asserted under the law. We have only the rights of ownership and control of the land by it owners, to be ascertained and protected.

Mutual contracts, fully executed between the Texas & Pacific Railway Company and the appellant, are alleged, giving the right to the plaintiff, independent of the express grant In the deed made by Vice President Brown. These details are not denied in the answer, save in the general terms before stated. The following authorities have been consulted: Pearce on Railroads, 260, 496, 497; 10 American and English Railroad Cases, 266; 6 Peters, 431; 2 Dillon on Municipal Corporations, sections 631, 635; 58 Texas, 553; 67 Texas, 345; 62 American Decisions, 372; 22 American and English Rrilroad Cases, 81; 106 New York, 1; 13 Texas, 585; 80 Florida, 263.

The motion to dissolve the injunction should have been overruled. The bill shows good ground for the writ, and the answer does not specifically deny the material allegations, so that the equities are not sworn away. It not appearing whether the case below was decided on demurrer or upon the bill and answer, the judgment will be reversed and remanded.

Reversed and remanded^

Opinion delivered June 12, 1888.