Buffalo Bayou, Brazos and Colorado Railroad Company v. George A. Ferris, 26 Tex. 588

Moore, J. It cannot be questioned that a railroad for general travel, or the transportation of produce for the country at large, is a “ public use,” for the construction of which private property may be taken or applied, upon adequate compensation for it being made. That the road for the construction of which, the property when taken is to be applied, is a corporation of private individuals, to whose benefit the profits of the road, when complete, will alone accrue, furnishes no valid objection to such appropriation of private property.

One of the chief occasions for the exercise of this right of eminent domain by the State, is, in creating the necessary facilities for intercommunication for purposes of travel and commerce. In such cases the object of the legislative grant, authorizing the application of private property, is the public benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government, or through.the medium of corporate bodies, or of individual enterprise.

If the grant of power, by the legislature to the appellants, to take and apply private property for the construction of their road, is in accordance with the restrictions and conditions under which private property, by the constitution, may be taken, and there has been no abuse of power by appellants, in the exercise of the right conferred upon them, it cannot be said that any wrong has been done by them to appellee, or that by entering upon and appropriating the property, which by their charter they were authorized to take, they had committed a trespass.

It cannot therefore be maintained, as is insisted, that the manner of ascertaining and assessing the amount of compensation that should be made to appellee for the property taken from him, as prescribed by the act of the legislature granting appellants their charter, is unconstitutional, because it does not require or authorize such compensation to be determined by the finding of a jury. The legislature cannot take private property without adequate compensation being made. But the constitution does not prescribe a rule for determining what constitutes adequate compensation.

It may be done in any manner that the legislature in its discretion may prescribe, if the means prescribed are effectual for fairly ascertaining the adequate compensation which the owner of the property should receive. The constitutional provision, that, “the right of trial by jury shall remain inviolate,” does not apply to the case of taking private property for public use, but to suits in courts of justice; to some known and fixed mode of judicial proceeding, for the trial of issues of fact in civil and criminal causes in courts of justice.

It was intended as a constitutional safeguard in the trial of those cases for which it is stipulated, that the courts shall remain open, and wherein a party shall have remedy by due couse of law. (Beekman v. Saratoga & Schenectady Railroad Company, 3 Paige 45; Bonaparte v. C & A. Railway, Bald. C. C. R., 205; Bloodgood v. M. & H. Railway, 14 Wend. 51; 18 Id. 9; Sternes v. Middlesex Canal, 12 Mass. 466; Wheelock v. Young, 4 Wend., 650; Stowell v. Flagg, 11 Mass. 364; Mason v. Kennebec & Portland Railroad Company, 31 Maine, 215; Aldrich v. The Cheshire Railroad Company, 1 Foster, (N.

H.,) Reps., 359.) It is not pretended that appellants, in appropriating appellee’s property for the construction of their road, went beyond the authority conferred upon them by their charter. And if this is in other respects constitutional, the exceptions to the plea in abatement should not have been sustained. But it is also urged, that so much of the charter as authorizes appellants to enter upon and take individual property, is unconstitutional, because it does not make provision for adequate compensation to the owner of the property.

By their charter appellants are authorized to enter upon and purchase, or otherwise take and hold any land nebessary for the purpose of locating, constructing and maintaining their railway, not exceeding forty yards in width, for which such compensation should be made, (if not agreed upon by the parties,) as should be determined in the manner provided for in the eighth

section of said Charter, which is as follows: “ That any person whose land has been taken as aforesaid may apply to the District Court of the county in which such land is situated for the appointment, and said court shall thereupon appoint three disinterested freeholders of the county, who shall appoint a time and place to hear the applicant and the company, to whom shall be given reasonable notice by the court, of said time and place, and said freeholders shall, after being sworn, and after hearing the parties, determine the amount of compensation as aforesaid, and make return of their award to said court at its next term; and said award may be confirmed, or for any sufficient reason rejected by said court, in the same manner as the awards of arbitrators under a rule of court; and if confirmed by the court, execution shall be issued thereon as in other cases.

In determining the amount of compensation to be paid as aforesaid, said freeholders shall be governed by the actual value of the land at the time it was taken—taking into consideration the benefit or injury done to the other neighboring lands of the owner, by the establishment of said railroad.

If in any case the amount found by the arbitrators shall not exceed the amount proved to have been offered by said company to-the owner prior to his application to the court, the owner shall pay the cost of the proceeding, otherwise the company shall pay the same.” It is insisted that the charter fails to make provision, for adequate compensation to the owners of property, which, by it, the railroad company is authorized to take.

First, because the-company are authorized to take and hold the land without simultaneously making compensation for it, while the owner of the property can only enforce payment of the amount awarded him by an execution against the company, and this without any guaranty of their solvency, and after a delay of at Ipast two terms of the District Court.

Second, it does not require that the value of the property taken shall be paid in money, but permits this to be. done by an estimate, by the commissioners, of the speculative and contingent benefits that may accrue to other land of the owner in the neighborhood, by the construction of the road. With due respect for the legislative department of the government, we feel constrained to say, that, in our opinion, these objections to this part of appellant’s charter are sound.

The language of the constitution most certainly indicates that the taking of private property, and the making of compensation, shall be concurrent acts. There may be, and doubtless are cases where the amount of damages to. which the owner will be entitled- cannot be ascertained until the property has been taken. And frequently it may occur that it will not be improper, owing to the object and purpose for Avhich it is done, that the property may be -taken into possession before the payment for it is made.

But, in such cases, if an appropriate remedy is provided upon an adequate and certain fund, whereby the owner may obtain remuneration without unnecessary delay, this provision may be regarded as “adequate compensation being-made” to him when his property is taken. When compensation, for the property taken is to be made by the'State, an appropriation of a fund for its payment, as soon as it- could be ascertained by a proceeding authorized for that purpose, might probably be held a compliance with the constitution.

But Avhere, although the property is taken for a public use, compensation for it must be made by a private corporation, an execution on a judgment to. be rendered at least two terms subsequent to the taking of the property, cannot be considered as adequate compensation. Although' we may hold that the constitution did not intend to use the word “compensation” as altogether synonymous with that of' “pay-. ment,” yet we cannot regard a means of procuring payment, which may, to say the least of it, prove to be of doubtful and uncertain efficacy, as adequate compensation.

To constitute the means of enforcing payment at a future day, as adequate for the purpose of compensation, it must be guaranteed by something more certain than the continuing solvency of a railroad company. It could never have been.the intention of the framers of the constitution to arrest from individuals, by the strong arm of the government, their property, and leave them to look for compensation to the precarious and uncertain responsibility of a railroad company.

The property must be paid for when taken, or within a reasonable time thereafter; and the making of compensation must be as absolutely certain as that the property is taken. (Carr v. Geo. R. R. & B. Co., 1 Kelly, 524; Young v. Harrison, 6 Geo., 130; Bloodgood v. M. & H. R. R.

Co., 18 Wend., 9; 2 Kent, 339, note, and cases there cited.) It may be urged, however, that, although the charter may not have made provision for adequate compensation to appellee for the property taken, yet, in the absence of such provision, the company were still authorized to enter and take such land as they required to construct their road; and although they might have been restrained from doing so by'injunction, they were acting under and in conformity with law, and cannot be regarded as trespassers, and consequently an action cannot be maintained against them for the alleged trespass with which they are charged.

Although this doctrine seems to be sustained'' by high authority, Ave feel constrained to dissent from it. (Rogers v. Bradshaw, 20 Johns., 735; Jerome v. Ross, 7 Johns., Ch. R., 344.) The State is as impotent as an individual to take private property for any purpose without the owner’s consent, unless adequate compensation is made for it.

Unless this provision of the constitution has been complied with, any interference with private property, it matters not under what pretence, is an injury done to the owner, for AArhieh he is entitled to redress “by due course of laAV.” The constitution gives a right of action to every one who has received an injury in his lands, goods, &c.; and it cannot be said that an individual’s land can .be taken from him, .let it be done by whom-or for what purpose it may, without injury, except where adequate compensation has been made to him for so doing.

Nor is it any answer to this proposition to say that the taking of his property is not illegal, because the constitution has guaranteed to him compensation for it, and the legislature is bound to secure it to him, and this may be done by a future act. But is the obligation, we may ask, to make him compensation any stronger upon a future legislature than it was on that one by whose authority his property has been taken; and if it has failed to make a constitutional provision for his compensation, what assurance can he have that any future one will do so?

It was, however, to place the rights of property upon higher grounds than the mere legislative sense of justice and equity, that this prohibition upon legislative power was embodied in the bill of rights. Nor do we think that land taken for public use can be adequately compensated for merely by the advantages that may accrue to other land of the owner in the neighborhood, by reason of the public improvement for the construction of which it was taken. The constitution contemplates that private property shall not be taken from its owner without payment of its just value being made to him.

And such payment must, as all other payments, be made in money—the only constitutional currency for this purpose. The owner of land taken for public use is entitled to the intrinsic value of the land so taken, without reference to the profit or advantage that he may derive from the construction of the improvement for which it is taken. He is also, however, entitled to such damages, if any, as are occasioned to the remainder of the tract, of which the land taken was a part, by reason of its appropriation for the purpose for which it was taken.

In estimating these damages, the benefits and advantages that the remainder of the tract will derive from the improvement are legitimate subjects of consideration, and are to be estimated in determining the true amount of damages that have accrued to the owner by the appropriation of his property for the purpose for which it has been taken. But this does not affect the claim for the intrinsic value of the land taken. (Jacob v. The City of Louisville, 9 Dana, 114; The People v. The Mayor of Brooklyn, 6 Bab., Sup. C., 209; Rogers v. R. R. Co., 3 Maine, 310; State v. Miller, 3 Zab., 383; Hatch v. R.

R., 25 Vt., 49; Moale v. Baltimore, 5 Md., 314.) We conclude, therefore, that the exceptions to appellant’s plea in abatement were properly sustained; that they have no right to complain of the charge; that there is no error in the record for which the judgment should be reversed, and it is therefore affirmed. Judgment affirmed.