Kansas, O. & G. Ry. Co. v. Grayson County

WILLSON, C. J. (after stating the facts as above). It appears in the record that the conclusion of the trial court that appellant was liable as determined by the judgment he rendered, notwithstanding the fact that in opening the new road the requirements of articles 6705, 6706, and 6710, R. S. 1925 were ignored, was on the theory that the special road law for Grayson county (10 Gammers' Laws of Texas, p. 722), and not the general road law, controlled in the matter. Whether the view taken was the correct one or not we will not undertake to determine, for, if it was, we would think the judgment nevertheless was erroneous because the requirements of the special law also were ignored. That law provided that, when it became necessary to use land for a public road and the county and the owner could not agree upon the damage to be paid, the county might condemn such land in the same manner that a railroad company might condemn land for a right of way for its line of railroad. That manner is set out in articles 3261-3271, R. S. 1925, and requires, among other things, notice to the owner of the land and a hearing before commissioners to determine the damages he is entitled to. No notice of the use appellee proposed to make of appellant’s right of way was given to it, and no opportunity to be heard by commissioners appointed to assess appellant’s damages for such use was accorded to it. Appellant insisted in the court below, and insists here, that to -subject its right of way to use as a public road crossing without such notice and hearing and without any compensation therefor would be to violate the provision in the Fourteenth Amendment to the Federal Constitution declaring that no state “shall deprive any person of life, liberty or property without due process of law,” and the provision in section 17 of article 1 of the state Constitution that “no person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” We think the contention should be sustained. Travis County v. Trogden (Tex. Sup.) 31 S. W. 358; Ry. Co. v. Milam, 90 Tex. 355, 38 S. W. 747; Ry. Co. v. Hardeman County (Tex. Civ. App.) 146 S. W. 683; Ry. Co. v. Baudat, 18 Tex. Civ. App. 595, 45 S. W. 939; Ry. Co. v. Royall, 75 Ark. 530, 88 S. W. 555; Ry. Co. *544 v. City of Chicago, 166 U. S. 226, 17 S. Ct. 581, 41 L. Ed. 679; 10 R. C. L. 148; note to Ry. Co. v. Rhodes, 24 L. R. A. (N. S.) 1226. In the note just cited, where many supporting cases are referred to, it is said: “As an easement in a railway right of way is property within a constitutional inhibition against taking or damaging private property for public use without compensation, it is generally held that a street or highway can not be laid out or established across it without making compensation therefor.” And in Ry. Co. v. Royall, 75 Ark. 530, 88 S. W. 555, the Arkansas Supreme Court, after holding under a statute seemingly like the Texas statute (said article 6327, R. S. 1925) that a railroad company was not entitled to compensation for constructing a road crossing or keeping it in repair, said: “But the question of establishing the road across the right of way without compensation or without any assessment of the damages therefor is a different matter. Waiving the question of whether it is in the power of the . Legislature to compel a railroad company to give a crossing over its right of way without compensation, we, as before stated, find nothing in the statute which authorizes the establishing a public road across a railroad track and right of way without an assessment of damages; and we think damages should be assessed by the viewers, just as the damages to other proprietors of land along the proposed road are assessed. Now, the report of the viewers in this case shows that they made no. assessment of damages suffered by the railroad by reason of the public road crossing its track. The public does not seek to deprive the railroad of its right of way. It only seeks to condemn the mere right to cross, which would leave the company free still to use its right of way and track as it had used it before. A right affecting the use of its property by the company to so slight an extent as this country crossing would affect it would not call for any great amount of damages, but, whether large or small, the company has a right to be compensated to that extent. In the case of Chi., B. & Q. R. Co. v. Chicago, the facts were that the city of Chicago established a street across the tracks of a railroad in that city.. The jury that tried the case assessed the damages at only $1, but the judgment was sustained both by the Supreme Court of Illinois and the Supreme Court of the United. States. C., B. & Q. R. Co. v. Chicago, 166 U. S. 226, 17 S. Ct. 581, 41 L. Ed. 979. As the road in this case was not a street in a city or town, but a country road, if the viewers had passed on the question of damages sustained by the company by reason of the establishing of this public road ⅞cross its roadbed and right of way,'and had found only nominal damages, we might have sustained the finding, but they did not pass on the question at all; and the circuit court, in sustaining the demurrer to the petition of the company, held, in effect, that under the statute the company was not, as a matter of law, entitled to any damages. But as before stated, we are of the opinion that the company had the right-to have the question of whether it was damaged, and the amount of such damage, if any, assessed by the viewers. We are therefore of the opinion that the court erred in sustaining the demurrer to the petition of the company.” The trial court thought the special road law for Grayson county controlled in the matter, and that the provision therein authorizing the commissioners’ court to adopt a system for working, laying out, etc., the public roads in the country empowered that court to “adopt,” quoting from said court’s “conclusions of law,” “the system of dedication and acceptance and the declaration of the existence of a public road by- its order duly recorded in the minutes of said court.” We have no doubt that land dedicated by the owners thereof for the purpose may become a public road without other formality than the acceptance of the dedication by the county and use of the land as a road; but in this case the land constituting appellant’s right of way was never dedicated for that purpose. The judgment will be reversed, and judgment will be rendered here that appellee take nothing by its suit against appellant, but - without prejudice to any right in it by 'proper proceeding to subject appellant’s right of way to use as a part of the public road in question.