163 S.W. 1047 | Tex. App. | 1914
The case was tried before the court without a jury, and, from an adverse judgment, the state prosecutes this appeal, assigning as error the refusal of the court to render judgment in its behalf. The company admitted removal of its track, as alleged, but sought to justify its action by pleading and showing that from Burnside Switch to Arcola Junction, from which point the same had been removed, the road had become in bad order, its ties had rotted, and its rails rusted, and there was practically no need for its operation because of the fact that it did not pay operating expenses so far as its local traffic was concerned; that it ran through a low, flat, undeveloped country, and that prior to its abandonment the company had procured a charter, and was now operating a branch road, extending from a point about 3 miles north of Arcola in a southerly direction, which branch connected with both the International Great Northern and the Santa Fé Railways, and gave substantially the same service, so far as its connections were concerned, as the old line from Burnside Switch to Arcola Junction; that it ran through a fertile, developed, and productive country, furnishing railway facilities to about 1,000 people, whereas, the abandoned line served only one person, who was not left without railroad connections, because of the fact that he was adjacent to the line of the Gulf, Colorado Santa Fé Railway; that prior to the abandonment of said track it had obtained an order from the Railroad Commission, permitting its removal, which had been effected before said order had been rescinded; that to comply with the last order would involve an outlay of $40,000, as well as $10,000 annually to maintain said line; that the local revenues derived from the operation of the abandoned line amounted to about $34 per annum. There was no allegation nor proof, however, showing the revenues arising from the traffic over its connecting lines via Arcola.
We have been unable to find any provision of law, and our attention has been directed to none, expressly authorizing a railway company in this state, under any circumstances, to abandon and remove its track; but, on the contrary, we find statutes which, by implication, at least, seem to indicate that no such power was ever contemplated. Article 6550, R.S. 1911, provides that "every railroad company organized in this state shall make an actual survey of its route or line for a distance of twenty-five miles on its projected route, and shall designate the depot grounds along said first twenty-five miles before tho roadbed is begun, and norailroad shall change its route or depot grounds after the same have beenso designated". (Italics ours.) Again, article 6625, Id., which provides for the organization of new companies by the purchasers of the franchises of old ones, contains a proviso to the effect that by such purchase and organization no right shall be acquired in conflict with the present Constitution and laws in any respect, nor shall the main track of anyrailroad once constructed and operated be abandoned or removed.
The question here presented, so far as we are advised, has never been passed upon by the courts of this state; but ample authority is found in the decisions of other states of the Union to the effect that prior to the location, establishment, and operation of a railway company it would have the right, within its discretion, to change or alter its route; but, when its route has been selected and designated, and it has actually constructed its road, and begun operation thereover, such right no longer exists. And this doctrine seems to be well settled, and in conformity with an almost unbroken line of decisions in this country as well as in England. See 2 Elliott on Railways, § 930, wherein, among other things, it is said: "Once located it is said a railroad is permanently located for the whole term of its existence, subject only to the exception of a specially granted, express legislative enactment authorizing a change or relocation."
In the note to Lusby v. Kansas City, Memphis Birmingham R. R. Co., 36 L.R.A. 510, it is said: "With the exception of the Mississippi T. R. Co. v. Devaney,
Appellant contends that, by the acceptance of the charter and the operation of the road thereunder, an implied contract arose *1049
for its continuance during the life of the charter, and that, such being the case, its removal was unlawful in the absence of express legislative authority, citing Reagan v. Farmers' Loan Trust Co.,
Finding no statute granting to railway companies the right to abandon and remove any portion of their track after the same is located, and none being granted in its charter, and taking into consideration the fact that the Legislature has from time to time granted such right in special cases when applied to (as instanced by the permission granted to the Southern Kansas Railway Company by the Thirtieth Legislature to abandon a portion of its line running from Washburn to Panhandle — see Session Laws of 1907, p. 99 — and other instances not necessary to enumerate), we hold that, in the absence of express legislative grant, no railway company is authorized to abandon or remove any part of its track, and that the abandonment and removal in the present case was therefore unlawful.
Appellant further contends that the court erred in refusing to grant it a mandamus or mandatory injunction, on the ground that the appellee had violated its charter and contractual duty owed to the state and the public thereunder, and refused to perform said duty, whereby appellant was entitled to the issuance of such writ, citing, in support of such contention, Rex v. Severn Wye Ry. Co., 2 Barnwall Alderson's Rep. 646; Railway Co. v. Davis, 2 Dev. B. (19 N.C.) 469, cited in State v. Southern Pac. R. Co.,
It is said that mandamus is the proper remedy to prevent a railroad company from abandoning a part of its road after completion. See 1 Elliott on Railways, § 638; Chicago Ry. Co. v. Crane,
We do not believe that the order of the Railroad Commission authorizing the removal and abandonment of said portion of the track justified the company in doing so, because the Railroad Commission, in our opinion, had no power to grant such removal. The Commission is a creature of the statute, based upon constitutional provision for the establishment of an agency in this state, with such powers as may be deemed adequate and advisable. Section 2, art. 10, Const. of Texas. Being a creature of statute, with such powers only as the Legislature deemed adequate and advisable, it could deraign no authority by implication or from the common law. See Railroad Commission v. G., H. S. A. Ry. Co.,
Although we think it becomes our duty to reverse the case, because we conclude that the company had no right to remove and abandon the track in the absence of express legislative authority to do so, still we are not disposed to grant the full relief prayed for by the state — that is, award both the issuance of the writ of mandamus or mandatory injunction and assess a penalty for the violation of the order of the Railroad Commission directing the replacement of the track by the company — because, even if the Commission had the authority to make such order, which we do not decide, still, since the company had removed the track by its sanction, it could not be held to have willfully done so, for it had reasonable grounds *1050 therefrom to believe that it was justified in so doing.
We therefore reverse and remand the case, with instructions to the trial court to award the writ of mandamus or mandatory injunction, requiring the company to replace said track, and operate its line thereover.
Reversed and remanded, with instructions.
