Should High Speed Rail Be Able To Claim Eminent Domain On Private Property

by, Holly Ratcliff

As High Speed Rail’s plans resurge, a private company set on building a railway system between Dallas/Fort Worth and Houston, land will need to be assessed for efficiency and sustainability. While research is underway, issues of eminent domain power could manifest. Does High Speed Rail have the ability to enter or utilize privately owned land?

Statutes involving eminent domain must be “…’strictly construed in favor of the landowner and against those corporations and arms of the State vested therewith'” Birch v. City of San Antonio, 518 S.W.2d 540, 545 (Tex. 1975). Still, companies like High Speed Rail may condemn property by §112.053 of the Texas Transportation Code which gives eminent domain power to a “railroad company.”

This may be discredited as legislation is written in the present tense when describing a railroad company. At this point in time, High Speed Rail is not termed a railroad company and only has plans to create a railway system.

The second statute that would offer High Speed Rail eminent domain power is §131.012 of the Transportation Code. This would give eminent domain power to an “interurban electric railway company” or a “corporation chartered under the laws of the state to conduct and operate an electric railway between two municipalities in the state.”

There are two reasons that High Speed Rail could not be considered an interurban electric railway:

1) “To be qualified to be an interurban electric railway company, the company must first be a railroad company, which High Speed Rail is not,” claims Texas Attorney General, Ken Paxton.

2) “An interurban electric railway company, within the meaning of this chapter, is a corporation chartered under laws of the State for the purpose of conducting and operating an electric railway between two cities or between two incorporated towns or between one city and one incorporated town in the State” (Old Article 6540 of Vernon’s Statutes, originally passed in 1907). Since the revision of Art. 6540 in 2009, Texas no longer recognizes a difference between cities and incorporated towns as all cities and towns are now considered municipalities: Type A, Type B and Type C general municipalities (TEX.LOC.GOV.C. Chapters 5-9).

Another issue embedded in legislation is the proposed time it would take to build the new railway that contrasts the following requirement: “The rights secured under this chapter by an interurban electric railway company are void unless the road to be constructed under the charter of the company is fully constructed from one municipality to another within 12 months of the date of the final judgment awarding the company an easement or right-of-way under Section 313.015.” High Speed Rail’s construction project is estimated to last anywhere from three to four years.

Many of these laws reflect projects of a smaller scale, like the Dallas Area Rapid Transit (DART): “The streetcars and the interurban lines were vital in the development of the City of Dallas and North Texas. Real estate developers used them as amenities to support the idea of suburban life where a person could easily commute to downtown to work, but return home to a pleasant residential community” (“History of the Interurban Railway System and Monroe Shops” 14).

Embedded in the history and legislation of railway systems, some might discover a dated mindset that prevented competition between railway companies or the sale of electricity between those companies and the cities they travelled through. Today, one may find it more difficult to enforce these statutes as a new system like High Speed Rail’s no longer intends to serve the same purpose as the type of transit outlined in these laws once did.

As stated by Paxton, “Since determining legislative intent is always the goal of statutory construction, the question is whether in 1907 the legislature intended an interurban electric railway company to be what High Speed Rail is today. The legislature could not have intended to give eminent domain power to a railway such as High Speed Rail under the interurban electric railway company statute because there was no such thing as High Speed Rail in existence at the time.”

Many towns may welcome the idea of a railway system, excited by its undeniable potential. As companies like High Speed Rail move in, judiciary officials and citizens alike should consider both its risks and rewards.