The San Angelo press. (San Angelo, Tex.) 1897-1907, 1904-01-21
SCHOOL LANDS SACRED
Appellate Court Says Railroads Can
Not Construct Through Them
Supreme Court to be Heard

Importance of question involved
in n case now pending in the Su-
pgeme Court of Texas, entitled
Texas Central Railway Co. VS.. +.
Bowman ct al, from Comanche
county. The one important ques-
ton Is that it involves the right
of railroads to go over the public
lands under II provision of the re-
vised statutes specifically giving
them that privilege.
The Ft. Worth Court of Civil
Appeals said that the article of
the statute was unconstitutional,
and gave an interesting opinion in
support of its position. However,
the Supreme Court is inclined To-
disagree with the said appellate
court, for in granting n writ of er-
ror from the Judgment, 1T wrote
ON its private docket: eve in
cline to think the Court erred in
holding that the Legislature did
not have the power to grant right
of way over any lands the title to
which is in the State" Thus the
Supreme Court will hear the case
on its merits.
One of the largest railroad con-
struction enterprises in the State,
south or west, is directly interest
ed in the outcome of this case.
The reference is had to the Kan
sas City, Mexico and Orient Rail-
way Company, known as the ORR
ent, which has projected n road
from Kansas City, Mo-, TO Topo-
lobampo, on the western coast of
Mexico, and shortens by thous
and miles or more the freight
route TO aud from the Far East.
This company expects TO go across
the western portion of Texas,
wherein all of the school land is
located, and will build nearly 500
miles of rail line in this State,
most of which is TO be over school
land. Its general attorney in Tex
us will ask permission to file u
brief in the case.
"The real controversy is over
the title to the right of way claim
ed by the railroad company across
three quarter sections of free
school land sold by che State to
Bowman ct al. The determination
of this controversy depends upon
the Interpretation of, and effect to
be given to Art. 1923 of the Re-
vised Civil Statutes, which reads
as follows: Every such corpora,
tion shall have the right of way
for it's line of road through and
over any lands belonging to the
State, and to use any earth, tim.
Der, stone, or other material upon
any such land necessary to the
construction and operation of its
road through and over such land.
This article was in force at the
time appellant constructed its line
across the land, ard if It's Ian.
guage embraces public free schoo
land and the article itself is not
in violation of the Constitution
defeating the public free schooI
lands to educational purposes
then appellant IS entitled to re-
versal and rendition of this judg
ment.
"The language through anc
over any lands belonging to thi'
State is very broad and would
probably upon fair construction
be held to include public fret
school lands if that construction
be not influenced in any respect
by the Constitutional provisions
setting apart such lands"
The Court here quotes such pro
visions and then says:
"We think it clear from thes'
provisions that the Legislature
has no power to divert any portion
of the public free school lands o
funds, or to appropriate the sam'
; to any other purpose whateve
than that pointed out in the or
ganic law creating that fund, Tit
language quoted is an unmistak
able inhibition of the exercise o
such power. Such we understand
to be the holding of our Supreme
r Court in several cases. Smissel
: VS.. the State, II Texas, 222; Fan
min county vs.. Riddle. 81 Texas
' $50; Knechler vs.. Wright, 40 Tex
r as, 600.
r. "We think it equally clear thai
a grant to a railroad company o
an easement in the right of wa.
across such land is an appropria
| ton of the same to another pur
Q pose than that to which it ha
G been destined, 1t acts directly
c as an impediment to the sale o,
, such portion (the only Legitimate
| ultimate utilization that can bt
I made of it) and if not permanent
l in it's nature, is of such an indie
, finite duration as to be practi
|