We adhere to the opinion heretofore rendered. By the very able opinion of the New York Court of Appeals, delivered in 1888, in the case of The People v. O'Brien, 111 New York, 1, we are much strengthened in the conclusion reached by us, that under our statutes the forfeiture of the charter of a railway corporation does not have the effect to divest, without compensation, the stockholders of their property rights in the roadbed acquired by their means. Some of the statutes of that State construed in that opinion seem to be quite similar to our own.
The principal question in the case of Erie Northeast Railway v. Casey, 26 Pennsylvania State Reports, 287, so much relied upon by appellants to sustain this motion, seems to have been the constitutionality of a statute about the meaning of which there was but little doubt; although it is not to be denied that there are expressions in that decision which go to the extent of holding, that upon the forfeiture of its charter by a railway corporation, its roadbed vests absolutely in the State, without compensation to the stockholders. We believe this part of the decision could only be sustained, even in the absence of a statute, in jurisdictions where *Page 658 the strict rule of the common law is in force as to the disposition of the property of dissolved corporations; and to remove any apprehension from the minds of investors that this might be the rule of decision in this State was probably the principal reason for the enactment of the statutes referred to in our former opinion.
The whole course of legislation in this State has ever been to foster and build up railroad enterprises, not to tear down and destroy them. The great body of our people have always manifested a desire to encourage the construction of these great highways, by affording to those who will furnish the means for this purpose the most liberal and ample protection; and we believe it would do violence both to the letter and spirit of our statute to give it a construction that would deprive these investors of the most valuable part of their property without compensation. It may be that there is no statute in this State now in force that will authorize the old Texas St. Louis Company to make a voluntary sale of this right of way, but if some other company wishes to acquire it, it must do so by condemnation proceedings, or in some other way compensate those entitled to the assets of the old company.
But even if it be conceded that we are in error in this, the appellant is in no better position. All that is contended for under the rule announced in the Pennsylvania decision and those holding with it is, that upon the forfeiture by a railroad of its charter the roadbed becomes the property of the State; and we see nothing in the allegations in the petition which shows that appellant has acquired from the State the title so conferred upon it. We do not believe the simple taking out of a charter under our general incorporation laws calling for the terminal points of the forfeited charter can have any such effect. If the Pennsylvania case is correct, the title to this right of way, according to the allegations of the petition, is still in the State, and it will require additional legislation to take it out.
We have had some difficulty in deciding as to whether or not appellant's petition was sufficient to enable it to recover against appellee by reason of the prior possession therein alleged. It will be noted, that appellant did not content itself by alleging ownership generally, or even ownership by possession, but it went further and pleaded the facts relied upon as constituting its title, and its possession seems only to have been claimed as an incident to and in right of such title. In Pacific Express Company v. Dunn, 81 Tex. 85, it is said: "We do not understand that in actions of this character it is incumbent on a plaintiff to deraign title through writings from the sovereignty of the soil, or in some of the other methods in which title is acquired, but understand that an exclusive and peaceable possession of land furnishes prima facie evidence of ownership which, if not rebutted, is sufficient to maintain such an action as this, or *Page 659 even ejectment or trespass to try title, against a trespasser or mere intruder;" citing a number of authorities. In this case appellant completely rebuts by its own allegations what might otherwise have been its prima facie title evidenced by possession.
We also entertain serious doubt as to the sufficiency of appellant's allegations to show that it had the exclusive and peaceable possession necessary to enable a plaintiff in ejectment to recover upon such title alone. It would seem, that where one seeks to recover a railway which extends over many miles, upon the ground of possession alone, he should go further with his allegations and proof than mere general statements which only show a possession that might not in fact extend beyond a very small part of the line. It looks too much like one going upon a hilltop and proclaiming himself to be in possession of the earth, and thereafter recovering against all who do not show a better title. At any rate, we do not think appellant's petition, when fairly construed, shows an intention to rely upon its possession independent of its real title for a recovery, and we believe no useful purpose could be subserved by prolonging this litigation by a reversal, even if appellant's allegations should be found to bring it within the language used in some of the decisions in a suit to recover a specific tract of land in the actual possession of the plaintiff.
Justice STEPHENS does not concur in the view entertained by a majority of the court as to the property rights of the stockholders in the right of way of a railway corporation whose charter has been forfeited, but does concur in the conclusion that appellant's petition fails to show that it has acquired title to the right of way in question.
The motion for rehearing is refused.
Motion overruled.