Reports of cases argued and decided in the Supreme Court of the State of Texas, during Austin session, 1861; Galveston, Tyler and Austin sessions, 1862; Galveston and part of Tyler sessions, 1863. Volume 26. Page: 484
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598 B. B., B. & C. R. R. Co. v. FERRIS. [Galveston Term,
any adequate fund to which he can look for his compensation. In
such a case a jury would give damages in the true sense, but the commissioners
would be governed by the soulless provisions of its charter
relative to remote benefits. We think, notwithstanding the decisions
shown by the appellants, that our courts should be cautious in allowing
parties to be deprived of their rights without jury trials.
Second proposition: That the provisions of the charter, if constitutional,
provide merely a cumulative remedy, but do not take
 away the common law remedy. Carr v. Georgia R. & B. Co.
1 Kelly, 524; Hart. Partition, p. 793; 16 Tex. 364; Hart. Right of
Property, p. 850; McKay v. Treadwell, 8 Tex. 176.
If the party is first deprived of his property and then left to his
remedy for compensation, he should certainly have the right to choose
The statutes relative to trial of the right of property and relative
to partition were intended to provide summary remedies. But this
court has held that parties may either avail themselves of these remedies
or sue in separate actions. McKay v. Treadwell, 8 Tex. 176; 16
The constitution gives the district court original jurisdiction of all
suits, compcblaints and pleas whatever, without regard to any distinction
between law and equity, when the matter in controversy shall be
valued at or amount to one hundred dollars, exclusive of interest.
Art. 4, sec. 10; see Hart. arts. 641, 646, 667, 703.
The district court having jurisdiction should have granted relief,
even if it should be required to be done by the appointment of
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
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas, during Austin session, 1861; Galveston, Tyler and Austin sessions, 1862; Galveston and part of Tyler sessions, 1863. Volume 26., book, 1881; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28547/m1/492/: accessed January 30, 2023), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .