
    TEXAS CHANNEL & DOCK CO. et al. v. STATE.
    (Supreme Court of Texas.
    March 15, 1911.)
    1. Public Lands (§ 175) — Texas — Lands Subject to Location — Islands.
    Lands situated on islands in Texas are reserved from location.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dee. Dig. § 175.*]
    2. States (§ 191) — What are Suits Against.
    In an action by the state to recover land, the effort and prayer of defendant railroad company to protect théir possession to the extent of their right of way, and its proper use as such, is not a suit against the state which cannot be entertained, but is merely defensive matter, proper for consideration in a suit by the state.
    [Ed. Note. — For other cases, see States, Cent. Dig. §§ 179-184; Dec. Dig. § 191.]
    3. Public Lands (§ 172) — Action by State —Raileoad Right op Way.
    In an action by the state to recover land, the claim of defendant railroad company to a right of way does not present a merely academic question, since a judgment for the state with no reservation would conclude the railroad company as to any right in the land whatsoever.
    [Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 172.]
    4. Public Lands (§ 175) — Texas—Raileoad Right of Way.
    Under Const, art. 10, § 1, and Rev. St. 1895, art. 4422, providing that any railroad corporation shall have the right to construct and operate a railroad between any points within the state and to connect it with railroads of other states, and article 4423, providing that every such corporation shall have a right of way over any land belonging to the state, and article 4425, providing that such corporation shall have the right to lay out its road not exceeding 200 feet in width and to construct it, and for the purpose of cuttings and embankments to take as much more land as may be necessary for the proper construction and security of its railway, and to cut down any standing trees that may be in danger of falling on the railway, land belonging to the state, situated on an island within the state, is subject to appropriation by a railway company for its use as a right of way.
    [Ed. Note. — For other cases, see Public Lands, Gent. Dig. §§ 555-570; Dec. Dig. § 175.]
    Error to Court of Civil Appeals of Third ■Supreme Judicial District.
    Action by the State against the Texas Channel & Dock Company and others. From a judgment of the Court of Civil Appeals (133 S. W. 318) reversing a judgment reserving to defendant Aransas Harbor Terminal Railway a right of way, defendants bring error.
    Reversed, and judgment of district court affirmed.
    Denman, Franklin & McGown, for plaintiffs in error. Jewel P. Lightfoot, Atty. Gen., L. A. Dale, and Jno. L. Terrell, Asst. Atty. Gens., for the State.
    
      
      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

In this case the state recovered from the plaintiffs in error in the district court of Travis county the title to the land in controversy. In the judgment there rendered it was decreed that same “shall be without prejudice to the rights of said railway (the Aransas Harbor Terminal Railway) to construct its railroad over the lands herein recovered by the state along the route heretofore surveyed by said road, provided said road is constructed before said land is sold or otherwise appropriated under the laws of this state.” The judgment did not particularly set out the field notes or contain any further description of this right of -way, hut same was very fully and minutely described in the answer of the plaintiffs in error and its exact location further illustrated by plats attached thereto, which original plats have, under order of the trial court, been sent up with the record. From this judgment, plaintiffs in error prosecuted an appeal to the Court of Civil Appeals for the Third supreme judicial district (133 S. W. 318). The state filed a cross assignment of error, attacking the conclusion and judgment of the trial court, in so far as same recognized and confirmed the validity of the right of way on and in the lands in suit.

The issue of title depends on the validity of the location of the William A. A. Wallace survey on Harbor Island. That lands situated on islands in this state are reserved from location has not only been settled generally in this state from a very early day, but this rule of decision has been very recently applied in respect to this very Wallace certificate in Roberts v. Terrell, 101 Tex. 577, 110 S. W. 133. Clearly the judgment for the title to the land and the decree canceling the patents were not only justified, but required, and the Court of Civil Appeals did not err in so determining.

We think, however, that that court erred in setting aside the decree of the district court recognizing, confirming, and respecting the rights of way on said island claimed by plaintiffs in error. In this connection it should be said that there is no assignment that such right of way interferes with any special use of said lands by the state, that more land has been designated as right of way than will in fact be reasonably necessary, or that as laid out on the ground it will result in a monopoly. The sole proposition submitted by the state is that under the Constitution and laws of this state land situated on islands is “not subject to appropriation by a railroad company for its use as a right of way or otherwise.” We cannot agree with the Court of Civil Appeals that the effort and prayer of the plaintiffs in error to protect their possession to the extent of their right of way, and its proper use as such, was, in the sense in which the law uses that term, a suit against the state, and therefore not to be entertained.' This but constitutes defensive matter setting up a right of qualified possession, and was a proper matter for consideration and settlement in a suit brought by the state. Nor can we coincide with the Court of Civil Appeals in their statement that the question is purely academic. Clearly, it seems to us, that, except for the protection furnished plaintiffs in -error in the judgment of the district court, a judgment for the state, with no reservation, would have concluded plaintiffs in error as to any right in the land whatsoever.

So we are confronted with the direct proposition: Is land belonging to the state, situated upon an island within the state, subject to appropriation (where there is nothing either excessively irregular and specially hurtful in the manner or extent of such appropriation) by a railway company for its use as a right of way? The affirmative of this proposition was recently held in a well-reasoned opinion by Associate Justice Rice of the Court of Civil Appeals in the recent case of Rockport & Port Aransas Railroad Co. v. State of Texas (not yet officially published) 135 S. W. 263, and such is our own opinion.

Section 1 of article 10 of the Constitution, so far as is here applicable, is as follows:

“Any railroad corporation or association organized under the law for the purpose, shall have the right to construct and operate a railroad between any points within this state, and to connect at the state line with railroads of other states.”

Articles 4422, 4423, and 4425 of our Revised Statutes of 1895 are as follows:

“Art. 4422. Any railroad corporation shall have the right to construct and operate a Tailroad between any points within this state and to connect at the state line with railroads of other states.
“Art. 4423. Every such corporation shall have the right of way for its line of road through and over any lands belonging to this state, and to use any earth, timber, stone or other material upon any such land necessary to the construction and operation of its road through or over said land.”
“Art. 4425. 'Such corporation shall have the right to lay out its road not exceeding two hundred feet in width, and to construct the same; and for the purpose of cuttings and embankments to take as much more land as may be necessary for the proper com struction and security of its railway, and to cut down any standing trees that may be in danger of falling upon or obstructing the railway, making compensation in the manner provided by law.”

The comprehensive language of the Constitution “between any points within this state” is made effective and carried almost literally into the Revised Statutes. It will be noted, too, that this right of way is granted “over any lands belonging to this state,” without exception, qualification, or abridgment of the right. It occurs to us that to adopt the contention of the state that this right should not exist on islands belonging to the state would be by judicial construction to destroy the plain meaning of the statute, go contrary to the wise and salutary provisions of the Constitution and statutes of the state, arrest the enterprise of our0 people, and stop them at the water’s edge and deny them aid to or participation in the commerce and carrying trade of the seas. Such a construction is not, we believe, in fairness to the language of the law, to be adopted. As shown by Judge Rice in his opinion in the case noted above, it runs contrary to the construction and practice obtaining in this state for more than a generation. We deem it unnecessary to extend the discussion further.

It follows, necessarily, from what we have said that the judgment of the Court of Civil Appeals must be, as it is, hereby reversed, and that the judgment of the district court should be, as it is, in all things hereby affirmed.  