Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-02-16
THE HIGHER COURTS.
Synopses of Decisions Rendered at the Present
Galveston Sitting of the Court
Of Appeals.

John P. White, P. J.. Sam A. Wilson and j. M.
Hurt, Judges.
COURT OF APPEALS.
Correspondence of the Gazette.
GALVESTON, TEX, Feb. Nv. II.
H Kyle, guardian, VS.. Texas and New
Orleans railway company; appeal from
Jefferson county. Eminent domain. This
record presents an agreed case under the
provisions of article 1898, Revised Stat
utes. Proceedings were interpreted by
the railroad company to condemn for
right of way purposes fifteen feet IN
width and sixty feet across in block No.
10 Ill the town of Beaumont, Tex. The
object was to run a 'spur' from
the main track to connect with
two lumber and manufacturing
companies mills and yards,
said companies being private concerns
operated for private profit. There was
no proof that charter of the railway COM
pany authorized the building of such a
lateral line or switch, unless such
authority is conferred by the general
statutes without requiring the company
to file an amended charter for that pur-
pose. No such amendment was proven
The company constructed their main
road and then ran out this divergence
over said land with permission of the
then owner, under verbal grant for ten
years. That time is now expired and
the present owner refuses to further grant
or sell right of way. On this the railroad
company brought proceedings and the
property has been condemned for right
of way purposes. The owner appeals
from this judgment. The court in their
opinion quote Mills on Eminent Domain:
''The power of eminent domain delegated
by legislative enactment is exhausted
after one exercise. The corporation
should forsee and provide for the increase
of its business. To admit the right to
successive exercise of the power would be
to subject all the land in the state to con-
demnatiOn. Section 5S. The power of
condemning for public use must be
strictly pursued. l Wood on Railway
Law, $40 A railroad for travel and for
transportation for the country at large is
a public use. Ry. Co. VS.. Ferris, 26
Tex. 58S.
The legislative intent is not to make in
dividual rights subsuryient to corpora
tions for private use and to arbitrarily run
its sidings to every place it chooses, doing
irreparable mischief to owners of proper
ty who are in the way. But if within
the words of the statutes or charters it
seems to be a gross violation of the
citizen IS rights that his property should
be violently taken for private use.
"'The question as to whether or not
use is public so that private property may
be taken for its promotion is prima facie
for the legislature is subject to final re-
vision by the courts. Indeed the ques-
ton as to whether the use is of such
public character as to warrant this eX-
traordinary power is always open to and
dependent upon the decisions of the
courts. l Woods Ry. law, 659.
Statutes delegating the right of
eminent domain are not to be
extended by implication nor construed
so literally as to defeat the evident pur-
poses of the legislature. If there is
doubt as to the intendment it is to be
solved adversely to the claim of power -
Held: That the use and exercise of the
power of eminent domain was never in
tended to be used to the extent to which
its use has been sought and attempted to
be exercised by the Texas and New Or
leans railway company in this case.
Reversed and rendered for appellant.
Opinion by White, 2. j.
Judge Wilson was not on the bench
when this opinion was delivered.