77 Tex. 182 | Tex. | 1890
—Appellants, who are husband and wife, sought to
That if as a matter of law the execution of said deed has conferred upon the city the right to use said land for water purposes, they prayed that said deed be cancelled or reformed, because they charge that they were induced to execute the said deed by the fraudulent representations of the city’s officers; that the said city had not agreed with or promised to give the water works contractor permission to sink wells upon said lands, when as a matter of fact it had been fully understood all the while between the said contractor and the mayor and city council of said city that such right would be guaranteed to said contractors so soon as the city should acquire an interest in said lands by condemnation or otherwise. That they were led by the fraudulent representations and the concealment of their true intentions on the part of said officers to believe that the said officers had made no promise to the said contractor and would attempt to confer no rights upon him, but would leave all future controversy over the right to use said lands for the .purpose of sinking wells thereon to be settled by complainants and the contractor, without any interference on the part of the city.
That immediately after the execution of said deed the water works contractors, with the full knowledge, approval, and consent of the city, began to sink a large number of wells upon the said strip of land, and are making preparations to attach to said wells the powerful water works machinery, which will exhaust not only the water underlying said strip but the water
There was a prayer for injunction. The petition was filed March 18, 1887, and on the 23d of March, 1887, the injunction was refused in chambers, the cause standing over for trial.
On December 16, 1887, general demurrers were filed by the several defendants. On the same day said demurrers were sustained by the court, and plaintiffs having declined to amend, their suit was dismissed, to which ruling they excepted, and in open court gave notice of appeal to the Supreme Court.
The only error assigned is the action of the court in sustaining the general demurrer to the petition and in dismissing the suit, because the petition set up a good cause of action. Under this assignment it is urged that “ the estate or interest taken by condemnation proceedings is only an easement and not the fee, unless the statute plainly contemplates and provides for the appropriation of the fee; and this is true even though the statute makes no provision for a deduction in the assessment of damages for the reversionary right. It is also a fundamental rule that all statutes in regard to eminent domain are to be given a very strict construction.
“Where the street is given to the public by dedication, $s by filing for record a plat, the fee is in the public only when made so by statute; and where it is in the former owner he may maintain an action for any improper use of such street.
“The owner of land dedicated retains his exclusive right in the soil for every purpose of use or profit not inconsistent with the public easement and may maintain appropriate actions for any encroachments upon it.”
In cases where land is condemned for a special purpose on the score of public utility, the sequestration of the land is limited to that particular use. The reason is that as the property itself is not taken but the use only seized, the right of the public is confined to'that use, of which alone the owner has been divested. Imlay v. Railway, 26 Conn., 255.
This principle is recognized in State v. Lovenaek, 34 New Jersey, 201; Railway v. Shermier, 7 Wallace, 272. So too where the use to'which the dedicated property is put is wholly different from the original purpose, a new assessment was required to give validity to the appropriation; and where lands appropriated by a railroad company for its purpose and after-wards were leased for private occupation, it was held that the owner of the fee was entitled to recover damages. Locks v. Railway, 104 Mass., 1.
The rule that land taken by the public for a certain use can not be appropriated to -another use to the detriment of the owner affords the only adequate protection of the citizen’s constitutional right to be compensated for the condemnation or use of his property for the public benefit.
The right of the plaintiffs (appellants) to prescribe the conditions and qualifications of a grant of property to a municipal corporation is unquestioned, and is recognized by its acceptance of the grant.
The city no doubt possessed the authority under the deed to sink wells and obtain water for the supply of its fire department in suppressing conflagrations, and also for sanitary or any legitimate purposes incident to the use for which the land was conveyed.
It plainly appears from the petition that the land was conveyed for “ street purposes only,” and it was stipulated that the same and no higher rights should pass to the city than could have been acquired by that city in the condemnation of the land for “street purposes only.” This limitation is without ambiguity, and the legal effect of its acquisition in this mode for street purposes we have seen. The legal effect of its acquisition by grant for street purposes is well settled. In Dubuque v. Benson, 23 Iowa, 250, it was held by Judge Dillon that the effect of a conveyance (similar to that in this case) to the city of Dubuque was to give the right or easement of passage in the streets; the right to use and work them as public ways, and the like; but reserved all other rights—in the case cited the right to take minerals therefrom.
We do not think that the deed in this case dedicating the land to the city for “street purposes only” authorized the use to which the petition alleges it was appropriated by the city.
The remaining proposition, that the deed having been procured by false and fraudulent representations, it should therefore be reformed or canceled, we do not think it necessary to consider, in view of the disposition made of the preceding propositions.
We think the court erred in sustaining the demurrer and in dismissing the suit, and that the judgment should be reversed and the cause remanded.
Reversed and remanded.
Adopted May 6, 1890.