279 S.W. 937 | Tex. App. | 1926
This is a contest between two bridge companies that have built temporary bridges spanning the Rio Grande, connecting the American with the Mexican bank at Eagle Pass. Appellant claims to be acting under the rights and powers granted the Rio Grande Bridge Tramway Company, organized in 1883, and granted authority by the Congress of the United States, on May 29, 1884, to construct a bridge across the Rio Grande at Eagle Pass, and authorized to *938 construct such bridge in 1887 by Mexican authorities, municipal, state, and federal. It was alleged that the bridge was constructed and was acquired by two corporations, one on the American side the Porfirio Diaz Eagle Pass Bridge Company, and the other the Puentes Carlos Pacheco, on the Mexican side. That bridge was partially destroyed about the year 1899, but was rebuilt and was continuously in operation as a toll bridge until June 19, 1922, when it was destroyed by a flood, and on August 4, 1922, appellant acquired "the right and title to the remains of the old toll bridge aforesaid and the rights and franchises above set out on the Texas side of the Rio Grande." It was also alleged that —
"Pending the erection of a permanent bridge, plaintiff about September, 1922, obtained the approval of the chief of engineers and of the War Department to plans for the erection of a temporary bridge across the Rio Grande at Eagle Pass. Said temporary bridge was erected shortly thereafter and operated as a toll bridge until on or about May 1, 1925, at which time said temporary bridge was washed away."
Afterwards, it was alleged that, with the consent of the War Department at Washington, a temporary bridge was completed on or about June 15, 1925, and put into operation as a toll bridge. It was also alleged that on or about March 18, 1911, the Porfirio Diaz Eagle Pass Bridge Company obtained from Eagle Pass a franchise for the operation of a bridge then existing for 25 years, and the said franchise was transferred to appellant by its owner.
It was also alleged by appellant that appellee company is constructing and proposing to operate a public pontoon bridge across the Rio Grande about 100 feet north and above appellant's bridge, to the damage and injury of the property and contract rights of appellant, and without the approval of the United States government. Appellee alleged that appellant had been operating a temporary toll bridge, without any authority, that it did not desire nor intend to erect a permanent bridge because more money could be realized from temporary bridges erected at a small cost and have them periodically destroyed by floods, than to erect a permanent bridge at a heavy cost. Appellee claimed that passage over its temporary bridge, which was nearing completion, would be free of tolls and that there would be every incentive to hurry the construction of a permanent bridge.
The first proposition starts with the assertions that it is undisputed that appellant had constructed and is operating a toll bridge across the Rio Grande under acts of Congress of 1884 (
Appellant seeks to place its right to an injunction on the illegality of the construction of the temporary bridge on the part of appellee. When it seeks an injunction as against appellee, the burden rests upon it to present such equities as will entitle it to the *939
writ, and consequently it was held to show that it had obtained from the national government the exclusive right to construct a bridge across the Rio Grande and that such exclusive privilege had been assailed by appellee. If it bad not obtained a legal franchise to construct and operate a temporary bridge across the river, it could not succeed in its desire for a writ of injunction on the ground that appellee had constructed and intended to operate a temporary bridge across the river without having obtained a franchise entitling it to do so. In order to establish its right to an injunction against one alleged to be invading a franchise right, the plaintiff must show, not only a grant from the proper authority, but also the fulfillment of all obligations imposed upon it by the act granting the franchise as conditions. There must not only be a franchise but an exclusive one shown. Pom. Eq. Jur. § 2016; Parsons v. Hunt,
The evidence clearly shows that appellant sought to acquire a franchise under a new name and has never attempted to act under any franchise purchased from the old company. It built new temporary bridges, even though it may have used some material that formed a part of the old bridge. It did not obtain any authority to purchase and use the franchises purchased, but all attempts made by it were to act as a new corporation under new franchises. Its legality must be judged in the light of its own acts and not those of any former corporation.
It cannot be presumed, in the face of facts showing the contrary, that plans were approved by the chief of engineers or any one else. Presumptions are indulged in the absence of facts and not in opposition to them.
Congress has declared that no bridge can lawfully be constructed over any navigable stream in the United States without the consent of Congress, nor until the plans for the same have been submitted to and approved by the chief of engineers, and the Secretary of War, and that evinces an intention to take control of such streams. It is insisted, however, by appellant, that the Supreme Court of the United States, in International Bridge Co. v. New York,
Every material question raised by the fourteen propositions has been considered, and finding no merit in either of them, the judgment of the trial court is affirmed.