The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1900-01-20
MUST CANCEL A LEASE.
Santa fe Can Not Rent Its Right of. Way to
Grain Dealer.
The COMMISSION MADE THE RULING
Oats Rate May Cause a Contest-pi-
rectors of a New Road Met In
Dullns--Notes.

Mr.. l.. ]. Polk. General Manager G., C. &
;. +. Ry. Co.. Galveston, Texas.
austin. Texas, January 10. 150o.--Dear
BIZ: We are il receipt OF Your letter ol
iVln inst. replying 10 our letter 10 ,oa Of
the Sen lust, ia winch you ASA d. oAlG.ai
construction OF the Revised Statutes, Art.
stiustioA oi the Revised Statutes, All.
4ieo. 10 which we referred in our former
letter. Inc complaint Was mat the Guli,
Colorado and santa re Railway company
had leased portion oil It's rlgHt OF way at
Naney Mliis. ieAas, To gram dealer, upon
winch TO buiid ana occupy warehouse,
which gave to said uedler an advantage
ovor other dealers. which the complainant
regards as dn unJunst Discrimination.
Will quote that part oil the REVISED
Statutes. Arr. 1883, waich we tnlnK appl
cable " and decisive OF the question, SO
Tar as the right Oh way is concerned. That
article, among otler things, says
such corporation shall nave The right
TO erect and maintain all necessary aud
convenient buildings which
may be necessary for the construction or
operation of its railway; but no railway
company shall have the power, elmer by
It's own employees or other persons, to con
struct any buildings along the line OF their
railroad TO be occupied by their employees
or others except at their respective depot
stations and section houses, and at such
places only such buildings as may he nee
essary for the transaction OF their legii-
mate business operations, and for shelter
for their employees, nor shall they Use, oc-
cupy or cultivate any part Of the right OF
way, over which their respective roads may
pass, with the exceptions aforesaid, for
any other purpose than the construction
and keeping in repair their respective rail-
ways.
This language, 1t seems to us, leaves no
room tor construction, certainly so far as
the right OF way Is concerned, where the
railway company Goes not own an estate
in fee, but only an easement on the land,
it has no right to lease out the right OF
way or depot grounds for any purpose.
Such lands are dedicated to necessary
quasi public use, and that public use can
not be legally granted to others for prl
vate use, and were this an open question
we would hold that in all cases OF right
Of way and depot grounds, this statute
would apply as well to cases where the
railway company owns an estate in fee
to the land SO occupied by 1t, as In cases
where it only owns the right of way over
the land. 1t is well settled principle Of
law that railway companies and other cor
porstions, operating under charters from
the State, can not lawfully engage in any
business not authorized by the charter, OF
some law of the State granting the right
The Revised Statutes. Art. 44lS, provides
that:
ANY railroad company shall have the
right TO purchase, own aud use all such
real estate and other property as may be
necessary for the construction and Use OF
its railway and the stations and other ac-
eommodatioDs necessary TO accomplish the
object OF its Incorporation, and to convey
the same when no longer required for the
use Of such railway"
Revised Statutes, Art. 4479 says.
TO take hold and use such voluntary grants
OF real estate and other property as shall
be made TO 1t in aid OF the construction
and use OF it's railway. and to convey the
same when no longer required for the use
OF such railway, in any manner not in
compatible with the terms Of the original
grant.
Revised Statutes. Art ALSO. requires the
alienation OF "all lands acquired BY rail-
road companies under the provisions of
this chapter or any general law, shall be
alienated by said companies one-half in
six years and one-half in twelve years
from the issuance of patents TO the same.
and all lands so acquired and
not alienated as herein required shall be
forfeited TO the State. All lands purchased
by or donated to a railroad corporation,
except such as are used for depot purposes,
resery atious for the establishment of ma
chine shops. turn outs and switches, shall
be nlienated and disposed of by said com
pauy in the same manner and time as is
required when lands have been received
from the State And little further on
in the same chapter is Article 4aS3. here
inbefore quoted.
ii it is true, as we believe it is, that
corporations can not engage in any bust
ness unless authorized by its charter or
some affirmative act of the legislature, and
as the charter of the Gulf. Colorado and
Santa Fe Railway company does not grant
the right to do other than a railway trans
poTtation business, and as the foregoing
articles of the Revised Statutes of Texas
give substantially all laws OF this State
bearing upon the subject under discussion.
1t would seem that when a strip of land
200 feet wide, through which the road Is
! built and operated, as a right OF way. and
! when a railroad company mas deed to
such right OF way and Depot grounds,
4 which ii is authorized to own By virtue
Of its chartered rights and for the purpose
~ enabling IL to perform Its duty to the
public, such land should be held to be
dedicated to the public use and beyond the
right of the corporation to put 1t to any
other use. But the supreme court OF THIS
! state in the case OF Calcasieu Lumber O..
VS.. Harrs II Texas Rep, p. 1924. held
thst where the railway had an estate in
I fee to the right OF way In Manor, Texas
1t has the right to isase out its land so
/ held by DEED, NOW tnSi dpnlng SUCH Ihna
| is what is usually called its right OF way
or depot grounds, and in that case the dis
| tinguished judge delivering the opinion,
on page a. said;
1T is true that the words right Of way
have become descriptive of the land over
which q railway runs. to the extent to
which the easement extends, but looking
to the entire act We are OF opinion that
the prohibition was made for the benefit
and protection OF the land owner and for
! no other purpose. and that II has no appli-
cation in cases in which railway company
owns an estate In fee In the land"
II nav he said that this orin]on settles
the question and that II Is no longer an
open one. It is true however. that he
| court I'm that case further sad
ar the rail@av conpany fails to fur
I nish 10 him TInrrisl ptNper tasili les for
removing his lumber from the plafe where
I il unlosded 81 as far ~ It own AM
controls the land he may have cause o.
1 sotlon against the COMPANY but nos
against appellant. We have not deened
\ AZ necessary 10 consider Other unfst ons
OF law hst msy sugges that
/ the railway company wonld seem to be
Z m aoffn1 such this