DAVIS v. PORT ARTHUR CHANNEL & DOCK CO., 87 F. 512

PARDEE, Circuit Judge, after stating the facts as above, delivered the opinion of the court. No written opinion having been given in the court below, the appellant has assigned errors covering all possible views and rulings of the judge a quo, but from the view we take of the case the right of the appellant to a preliminary injunction depends upon two propositions, and the first is: Does the charter of'the appellee authorize it to construct its channel along the route proposed, and thereby to pass through and over the appellant’s land, and condemn so much of it as may be necessary for the purposes of the said channel? The appellee obtained its charter under

article 721, Rev. St. Tex. 1895, and

article 722 of the same, as amended March 1, 1897 (1 Sayles’ Ann. St. 1897, p. 289 et seq.), as follows: “Chapter 14. “Channel and Dock Corporations. “Art. 721.

This title shall embrace and include the creation of private corporations for the purpose of constructing, owning, and operating deep-water channels from the waters of the Gulf of Mexico along and across any of the bays on the coast of this state to the mainland for the purpose of navigation and transportation, and for the construction, owning and operating docks on the coast of this state for the protection and accommodation of ships, boats and all kinds of vessels for navigation; and their cargoes. Acts 1887, p. 91. “Art. 722 (644b) Channel Corporations; Added Powers.

Every such channel corporation shall, in addition to the powers herein conferred, have power: “

(1) To cause such examination and survey for its proposed channel to be made as may be necessary to the selection of the most advantageous route for such purpose by its officers, agents or servants to enter upon any of the waters of such bays and upon any of the lands of this state, or of any person. “

(2) To take and hold such voluntary grant of real estate and other property as shall be made to it to aid in the construction and maintenance of its deep water channel and works pertinent thereto. “

(8) To construct its channel across, along, through, or upon, any of the waters of the bays within the jurisdiction of this state, and so far into the mainland as may be necessary to reach a place for its docks that will afford security from cyclones, storms, swells and tidal waves with such depth as may suit its convenience and the wants of navigation not less than five feet, and a width of not less than forty feet. “

(4) To furnish to vessels and boats adapted to the purpose facilities for navigating in and along the entire length of its channel, and to charge and collect a toll therefor, to be prescribed and established by its by-laws, not to exceed one per cent, per barrel bulk of the capacity of each vessel for each mile of the length of its channel used by the vessel going either way. “

(5) To borrow such sums of money as may be necessary for constructing, finishing, or operating its channel, and to issue and dispose of its bonds for any amount so borrowed and to mortgage its corporate property and franchises to secure the payment of any debt contracted for the purpose aforesaid: provided, the damages for any property appropriated by such corporation shall be assessed and paid for as is provided for in the case of railroads. “

(6) To enter upon and condemn and appropriate any lands of any persons or corporation that may be necessary for the uses and purposes of such channel corporation, the damages for any property thus appropriated to be assessed and paid for in the same manner as provided by law in the case of railroads: provided that no damages shall be assessed against or paid by it for any portion of the route of the channel embraced within and covered by the waters of any bay or lake on the coast of this state, nor for any portion of any island belonging to the state that may be requisite and necessary to the construction and successful operation of its channel: and provided, further, that its right of way shall not be less than the actual width of its channel, nor more than seven hundred feet in width on each side of its channel: provided, that when the land sought to be condemned under this

chapter is arable land, such right of way shall not extend further than six hundred feet on each side of the channel from the edge or boundary of said channel.” An inspection of these statutes, particularly in connection with the following sections of the same

chapter in relation to dock and channel corporations, shows that the right to expropriate the appellant's land for the purposes of channel cannot be questioned, if the route of the channel is laid out within the law, and in accordance with its charter.

The charter of the company purports to authorize it to construct, own, and operate a deep-water channel from the waters of the Gulf of Mexico at Sabine Pass, along and across Sabine Lake, on the coast of Texas, to a point on the mainland at or near the town of Port Arthur, in the county of Jefferson, in the state of Texas, and to control, own, and operate docks along the coast of the state of Texas, at or near said channel, for the protection and accommodation of ships, boats, and all kinds of vessels for navigation and their cargoes, with full authority to exercise all of the powers and enjoy all the rights and privileges prescribed by

chapter Id of title 21 of the lie vised Statutes of Texas of 1895, and all acts amendatory thereof and supplemental thereto. The charter follows the language of the Revised Statutes of 1895, except that in the Revised Statutes power is given to construct channels from the waters of (he Gulf of Mexico along and across any of the bays on the coast of this state, and the charter authorizes the construction to begin at the waters of the Gulf of Mexico at Babble Pass, and to run along and across Sabine Lake to a point in the mainland at or near the town of Port Arthur.

The channel actually laid out by the company, and the location given it, begins at Sabine Pass, several miles above the Gulf, and without touching the waters of Sabine Lake, and going along and across that lake to the mainland near Port Arthur, goes directly into the mainland within 200 feet Of its beginning point, several miles from the town of Port Arthur, and runs the rest of its route through the mainland, bordering on and along Sabine Lake till it reaches Port Arthur.

The land bordering upon Sabine Lake, and particularly the land of the appellant through which the channel is to be constructed, is open, unimproved, low, flat, salt marsh, unfit for cultivation of any kind, and practically in high water the borders of the lake are not well defined. Assuming that the beginning of the proposed channel in the waters of Sabine Pass is equivalent to beginning at the Gulf of Mexico, the proper location of the channel therefrom seems to depend upon the force and effect of the words “along and across” in

article 721, and “across, along, through, or upon” in paragraph 9, § 722. “Across” the waters of any bay would seem to warrant the locating of a channel in and through any bay in any direction. “Across, through, or upon” the waters of any bay certainly warrants a channel in any direction. “Along the waters of any bay” does not necessarily mean over, in, or through the waters, and may well mean along the borders of any bay; and in the statutes under consideration it seems to mean that or nothing.

Considering the object of the statutes and the purposes of the appellee company, the narrow construction contended for is not admissible.

Concluding, as we do, that the charter of the appellee company authorizes it to construct its channel along the route proposed, and thereby to pass through and over appellant’s land, and by proper proceedings expropriate the said land, the next proposition is: Under the peculiar circumstances of this case, is the appellant entitled to an injunction pendente lite to restrain the appellee company from entering upon the said land for the purpose of digging its channel until the final determination of the expropriation suit, and the payment of the damages awarded?

Section 17 of

article 1 of the Texas constitution reads as follows: “No person’s property sliall be taken, damaged, destroyed or applied to public use witiiout adequate compensation being made, unless by the consent of such person; and when taken, except for the use of the state, such compensation shall be first made, or secured by a deposit of money, and no irrevocable or uncontrollable grant of special privileges or immunities shall be made, but all privileges and franchises granted by the legislature, or created under its authority, shall be subject to the control thereof.” The articles of the Revised Statutes of 1895 of Texas bearing on the question read as follows: “Art. 4463. — 'When the said commissioners shall have assessed the damages they shall reduce their decision to writing, stating therein the amount of damages due the owner of such real estate, if any be found to be due, and shall date the same and sign it, and shall file the said assessment, together with all other papers connected with the case, with the county judge without delay.” “Art. 4468. — If either party be dissatisfied with the decision of such commissioners he may, within ten days after the same has been filed with the county judge, file his opposition thereto in writing, setting forth the particular cause or causes of his objection, and thereupon the adverse party shall be cited; and said cause shall be tried and determined as in other civil causes in said court.

Art. 4469. — If no objections are filed to such decision within the time prescribed in the preceding article, the county judge shall cause the said decision to be recorded in the minutes of said court, and may issue the necessary process to enforce the same.” “Art. 4471. — In no case shall such corporation be entitled to enter upon and take the property condemned without first having paid whatever amount of damages and costs may have been awarded or adjudged against it.” Construing these statutes, the Texas supreme court, in Gulf, C. & S. F. Ry. Co. v. Ft. Worth & R. G. Ry. Co., 86 Tex. 537, 546, 26 S.

W. 54, 60, said: “Under the law the award could not be made the judgment of the court until after the expiration of ten days from the time it was returned into court, and during that time plaintiff, by filing his objections to it, would have been entitled to a trial de novo before a jury, by which objections it would have set aside the award, and thus have secured ample protection before the county court, with the right of appeal to the court of civil appeals if its rights were not fully protected by the judgment of the county court.” In Travis Co. v. Trogdon, 88 Tex. 302, 31 S.

W. 358, the court held, in effect, that where the condemnation was for the use of the state the statute might provide for entry upon payment of the assessment made by the commissioners, thereby inferentially holding the converse to be true, i. e. if the condemnation is for the benefit of private corporations, and not of the state, payment of the amount awarded will not authorize the condemning party to occupy and use the land. In Ditch Co. v. Hudson, 85 Tex. 587, 22 S.

W. 398, the commissioners had reported, and the amount of their award had been paid into court by the condemning party, at the time the owner applied for injunction to prevent entry upon his land, and the court held that an injunction to" prevent entry upon the land should be granted, to continue till the condemnation proceedings were finally determined.

These decisions of the highest court of the state of Texas on the construction of the constitution and expropriation statutes of the state show that the appellee company had no right to enter upon the lands of the appellant for the purpose of digging its canal until compensation had been made, or the damages had been judicially assessed, and the amount thereof deposited; and that the deposit made by the appellee company in the county court of Jefferson county upon the award made in that court, and afterwards vacated, is without value; and it may be conceded that such will be the decree in the instant case on final hearing.

This, however, does not meet the question in hand. The present application is for an injunction pendente lite to restrain the appellee company from committing trespass, and to compel the appellee to desist from further trespassing, and to abandon the digging of its channel pending and until the final determination of the litigation. Such injunctions are issued in the circuit court in the sound discretion of the chancellor, to prevent irreparable injury pending the final determination of the rights of the parties.

It is only recently such discretion could be reviewed on appeal, and the effect of the appeal is merely to substitute the judgment and discretion of the appellate court for the judgment and discretion of the circuit court. The circumstances of this case are peculiar.

The case does not show a simple case of contest as to the value of certain lands to be expropriated for a canal; it rather shows an attempt, of course within the party’s right, to defeat entirely the construction of the canal; and the grounds of attack cover many matters which, if well taken, would be fatal to the projected improvement without in the slightest degree benefiting the appellant.

The appellant only owns an undivided one-eighth interest in the lands sought to be expropriated, and, although it is shown to be low, flat, salt marsh, unfit for human habitation, and unfit for farming or cultivation of any kind, he claims for it a value of $200 per acre on the water front and $100 per acre back from the water, while his co-owners of the other seven-eighths of the same land have acquiesced in the condemnation at the comparatively insignificant figure of less than $6 per acre.

Considering the character of the land, it is by no means certain that any kind of canal digging done upon it pending the litigation would do any substantial injury, even if thereafter the canal should be abandoned. A jury of the freeholders in Jefferson county awarded the sum of $281.80 as the actual damages to the appellant for the expropriation sought, and that amount of money has been deposited to the credit of the appellant.

The circuit judge required the appellant to file a bond in the sum of $5,000, conditioned to pay all damages which may be finally adjudged against the Port Arthur Channel & Dock Company in the condemnation proceedings. Without expressing any opinion as to the real value of the land in question, we are of opinion that the deposit already made and the bond required by the circuit court fully protect the appellant from all damages he may possibly incur pending the litigation, and that no injunction pending the said litigation is necessary to prevent irreparablS injury.

The other questions raised by the assignments of error need not be passed upon at this time. The order of the circuit court appealed from is affirmed.