Houston & Texas Central R. R. Co. v. Odum

Gould, Associate Justice. Since this case was tried this court has held that a charter to build a railroad to a city imports an authority to extend the road within the corporate limits, and that the statute conferred on the railroad having such a charter the right to use any public street of such city without compensation; the particular street being either agreed upon with the authorities of the city or designated in the manner pointed out by the statute. Rio Grande Railroad Co. v. Brownsville, 45 Tex., 88; Pasch. Dig., arts. 4936, 4937, 4941. The court below took a different view of the law, and notwithstanding the statute authorizing the Central Railroad Company to extend its branch road “ to the city of Austin” instructed the jury that the legislature had not granted the railroad the right to use a street of the city, nor empowered the city council to authorize such use. Substantially, the jury were told that the railroad was occupying the street wrongfully, and was responsible to plaintiff therefor. This erroneous charge must lead to a reversal of the judgment, unless it should appear, as claimed by appellee, that the special act authorizing the extension of the road to Austin is invalid. To the admission in evidence of this special act, it was objected that it was not so certified as to be admissible without further proof of its enactment as a law. If it be conceded that the final passage of the act over the veto of the governor, in the manner prescribed by the constitution, could not be officially certified by the chief clerk of the house and secretary of the senate after the adjournment of the legislature and the termination of their official functions, we are very clear that, the fact of such passage appearing from the published journals of the legislature, the validity of the act would not be affected by the failure of those officials to certify its passage at the right time. The court admitted [352] the act to be read from the published special laws, certified to by the secretary of state, and as it seems a conceded fact that the journals show its passage by the required “ two-thirds of the members present ” of each house, it is not material whether it was properly certified or not. It is further claimed that this act is invalid because in violation of sec. 17, art. 12 of the constitution of 1869, requiring every law enacted by the legislature to embrace but one object, to be expressed in its title. Our opinion is that, under the liberal rule heretofore adopted by this court, that part of the act authorizing tire extension of the road to Austin is not so foreign to the object expressed in the title as to come within the constitutional prohibition. Battle v. Howard, 13 Tex., 347; Tadlock v. Eccles, 20 Tex., 783. In regard to the ordinance of the city council giving their assent to the use of the street, we are of opinion that the ordinance, as passed and recorded, was not rendered invalid by subsequent unauthorized alterations or interlineations. The evidence abundantly established the assent of the city authorities, by ordinance and otherwise, to the use of the street. But it is claimed on behalf of appellee, that notwithstanding both the legislature and the city council may have authorized the railroad in the street, that, as the owner of lots abutting thereon, he is entitled to recover for damages in the actual depreciation in value of said lots by reason of the railroad. Although it is admitted that the fee of the streets of Austin is in the state, he claims that the easement in the use of the street to which he is entitled as the owner of a lot abutting thereon, is property which cannot be taken from him under the constitution without compensation. If the use of the street by a railroad would necessarily defeat the purpose of its dedication, and in fact amount to its destruction as a street, we are not prepared to say, let the fee be where it may, that the owners of abutting lots might not claim the constitutional protection. That adjoining lot owners have rights in dedicated public squares, beyond legislative control, was held [353] by this court in the case of Lamar County v. Clements, 49 Tex., 348. The use of a street by a railroad, however, is not ordinarily inconsistent with its continued use for the common purposes of a street. The authorities are numerous and conclusive, that such an addition to the uses of a street, the fee being in the public, if authorized by the legislature, gives the lot owner no right to compensation, although his easement in the street be thereby partially impaired and his lots rendered less valuable. The regulation or enlargement of the use of the street, the property of the state, by the legislature, is not a taking of property within the meaning of the constitution of 1869, although the lot owner may thereby suffer incidental or consequential inconvenience or injury. Kellinger v. 42d St. R. R. Co., 50 N. Y., 208; People v. Kerr, 27 N. Y., 188; 37 N. Y., 357; Hatch v. Vermont Cent. R. R. Co., 25 Vt., 49; N. Y. & Erie R. R. Co. v. Young, 33 Pa. St., 180; Shearman & Redf. on Neg., sec. 370, and references in note 1; 2 Dillon on Mun. Corp., 2d ed., ch. 18, sec. 475; Cooley’s Const. Lim., p. 542 et seq.; 1 Thompson on Neg., p. 358, sec. 23; Wood on Nuisances, secs. 753, 755. In the present attitude of the case we do not feel called on to define what would amount to such a destruction of a street as to require provision to be made for compensation to the abutting lot owner, nor to lay down a rule as to his measure of damages against a railroad in such a case. In regard to questions raised by appellant as to the title of appellee, it seems scarcely probable that the same questions will recur on another trial, and in the pressure of business we feel justified in pretermitting them. The judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered May 18, 1880.]