70 Tex. 298 | Tex. | 1888
The decision of this case depends upon the determination of the question of the constitu-. tionality of the act of March 23, 1887, which provides that all railroad companies which had theretofore, or which may thereafter “fence their right of way may be required to make openings or crossings through their fence and over their road bed along their right of way every one and a half miles thereof;”
The facts were admitted as alleged in the petition-and answer. From the answer it appears that the company was incorporated by a special law of the Legislature, passed- in 1873, and that, since the adoption of the Constitution of 1876 and the Revised Statutes, its charter has been several times amended in accordanee with the provisions of the latter relating to the amend-'' ment of the charters of railroad corporations. It also appears r that, in 1880, appellee conveyed to appellant the right of way, through his enclosure by deed, without any reservations or conditions whatever, and that, in the same year, appellant constructed its road and fenced it as required by the laws then . existing. ¡
Under the law which existed at the time the right of way was conveyed, it was the duty of the railway company to fence its track, and it becomes important to inquire what were the rights of the parties with respect to crossings over the railroad track in the inclosures, after the conveyances were executed and before the passage of the law in question. Our previous; statutes contain no provision in reference to what is now commonly known as "farm crossings,” and we must resort to the-general principles of the common law in order to determine the question. In the first place, we are of opinion that the owner of inclosed land who has granted the right of way to a railway company by deed, must be held entitled to such crossings over the railroad track as are reasonably necessary for the use of the premises inclosed. It is elementary law that a vendor who conveys to another land which is surrounded by the vendor’s other land, impliedly grants a right of way over the land which is not conveyed (Washburne on Easements, 233), and it is held that "the same rule applies when the grantor conveys land surrounding a parcel retained by him.” (Brigham v. Smith, 4 Gray, 297; Seymour v. Lewis, 13 N. J. F.q., 444.) This is upon the doctrine that the grantor impliedly reserves a way of necessity over the premises conveyed, and the principle applies with
In cases either of a grant or a condemnation it is the right of the owner of the land to demand crossings; but in the absence of some stipulation in the contract or of some proposition in the condemnation proceedings, we do not think it the duty of the railroad company to put them at its own expense. It is generally held, and especially by the more recent' authorities, that in the absence of a statute making it the duty of the corporation to provide farm crossings, the expense of constructing and maintaining them is to be allowed the owner as a part of the damages for condemning the right of way. (Railroad Company v. Gough, 29 Kan., 94; Railroad Company v. Keegles, 32 Kan., 408; Chalcraft v. Railroad Company, 113 Ill., 86.)
Judge Redfield in his work on Railways, written before the decisions in the cases cited: “And the tendency of the more recent decisions is sensibly in this direction; and we might add without offense, that in our judgment it is the only sensible direction the decisions could take, and we have always expected them to take such direction in the end, however late it may come.” (1 Redfield on Railways, 510; see also Railroad Company v. Moffatt 6 Cal., 74; 3 Sutherland on Damages, 444, 445.) Such is also the ruling of our Court of Appeals in the case of International & Great Northern Railroad Company v. Bost, above cited; and it is to be remarked that the elements of damages in condemnation proceedings by railroad companies is a matter peculiarly within the cognizance of that tribunal. The decisions of this court in International & Great Northern Rail road Company v. Pape, 62 Texas, 313, is in accord with the principles announced in the cases cited. These rulings are evidently founded upon the doctrine that in the absence of a statutory provision upon the subject, the law gives a right to the owner of the farm to have crossings, but imposes upon him the expense of their construction and maintenance, and we t.bink it clear that one who grants a right of way by an absolute deed
We come, then, to the question of the power of the Legislature to require of the railroad companies to put in crossings at their own expense, after having compensated the owner for the burden imposed upon them by the necessity of such constructions. It is claimed that the statute under consideration was but a lawful exercise of the police power of the Legislature. The right of the Legislature to require railroad corporations to fence their track, has been universally upheld, and has been expressly affirmed by this court. (Texas Central Railway Co. v. Childress, 64 Texas, 346, and cases there cited. Railway Co. v. Hemes, 512; same case, 86 Mo., 629; Welden v. Railway Co., 65 Mo., 332; Quackenbush v. Railroad Co., 62 Wis., 411; Railway Co. v. Power, 16 Kans., 573; Sawyer v. R. R. Co., 105 Mass., and cases cited in Tiedeman on Police Power, 597, n. 1.)
In speaking of our statute on this subject this court, in the case above cited from our Reports, says: “The object of the statute was to compel them (the railroad companies) to fence their tracks for the purpose of preventing damage to live stock, and for the still more important purpose of protecting the lives and limbs of passengers upon their trains.” Laws made for such purposes are clearly within the scope of the police power, an authority which it is held the Legislature has no right, by charter or otherwise, to give or bargain away. Regulations imposed upon railroad corporations, requiring the ringing of bells, the blowing of whistles, the constructing of crossings at the intersection of public highways,» and the maintenance of cattle guards, having in view similar objects, have been uniformly sustained as a proper exercise of a power impliedly re
Appellant’s charter, although granted by special act of the Legislature in 1873, having since been amended under the provisions of article 4109 of the Revised Statutes, it may be conceded that by accepting such amendment it has been subjected, as to the privileges and franchises therein granted, to the control of the Legislature. (Constitution of 1876, art. 1, sec. 8, and art 1, sec. 17.) But the right of the Legislature to amend the charter of a corporation can not be construed as placing them beyond the pale of those constitutional provisions which guard the rights and property of natural persons from the encroach-; ments of the legislative power. It is said by Chief Justice Shaw in the case of Commonwealth v. Essex County, 73 Massachusetts, 253, “The rule to be extracted is this, that when under power in a charter, rights have been acquired and become vested, no amendment or alteration of the charter can take away the property or rights which have become vested under a legislative exercise of the powers granted.” This was said in a case involving the rights of a corporation under a charter which was “subject to amendment, alteration or repeal
In the case last cited (Commonwealth v. Essex Company), the corporation had been granted a charter by the Massachusetts Legislature to construct a dam across the Merrimac river, and had been requested to put in suitable fishways as required by commissioners, and also to indemnify the owners of fishing rights for all damages to the fisheries accruing from the construction of the dam. The fishway was put in and the damages were paid. Subsequently the Legislature passed an act requiring a different fishway. It was held that the act was unconstutional and void. This decision was made upon the ground that the parties interested in the fishery rights had been compensated for the damages resulting from the imperfect fishway, as is shown by the subsequent case in the same court of Commissioners v. Water Power Company, 104 Massachusetts, 446. The facts of the latter were very similar to those in the former case. The distinctive difference was that in the latter it was shown
The main case relied upon by the appellees in order to sustain the constitutionality of the act in question is Thorpe v. Railroad Company, 27 Vermont, 140. That case maintains the validity of an act of the Legislature requiring railroad companies to put in cattle guards at farm crossings. It seems to us that requirements for fence and cattle guards stand upon the same principle. They are necessary for the protection of such domestic animals as are likely to stray upon the track, and more especially for the safety of passengers and employes of the railroad companies. Farm crossings are for the sole convenience of the owners of the land, and stand upon a different ground. Besides it did not appear in that case that the owners of the farm had been in any manner compensated for the expense of constructing his own crossings or cattle guards. That decision, though it extends, as we think the doctrine of the police power to its extreme limits, is not in conflict with the views expressed in this opinion.
We think it would have been competent for the Legislature in providing for fences, to have required the companies to put in farm crossings as a regulation of' its undoubted power to require such fences, all subsequent rights of way would be presumed to have been acquired with reference to that law, and the land owner would not have been presumed to have assumed the burden of their construction. We therefore think that as in all subsequent acquisitions of rights of way in the absence of some express or implied agreement to the contrary, the railroad companies will be charged with the duty imposed by the statute, and the measure of the compensation will be regulated accordingly. Therefore, as to such future cases, in our opinion, the statute should be constitutional, in so far as it applies to crossings within inclosure. (Smith v. Railroad Company, 63 New York, 58.)
For the reasons given in this opinion, we think so much of the statute under consideration as requires the railroad corporation to construct farm crossings at their own expense, where the right of way has been acquired by deed and the land fenced before the passage of the law, is in conflict with the Constitution, and therefore the judgment will be reversed and here rendered for appellant.
Reversed and rendered.