Albert v. Gulf, C. & S. F. Ry. Co.
| Decision Date | 23 March 1893 |
| Citation | 21 S.W. 779 |
| Parties | ALBERT v. GULF, C. & S. F. RY. CO. |
| Court | Texas Court of Appeals |
Appeal from district court, Cooke county; D. E. Barrett, Judge.
Action by Franz Albert against the Gulf, Colorado & Santa Fe Railway Company for damages for obstructing a street. From a judgment for defendant, plaintiff appeals. Reversed.
Bell & Green, for appellant. J. H. Garnett, for appellee.
Appellant was the owner of about 10 acres of land within the corporate limits of the city of Gainesville, and in March, 1887, conveyed five eighths of an acre to J. M. Lindsay, by warranty deed, and received a valuable consideration therefor. This deed called for the south line of appellant's track, and made no allusion to there being a road or street along this line. This land was conveyed to Lindsay, for the use of appellee, and was afterwards conveyed by him to it. Appellee established its yards, roundhouses, and shops upon this land and land acquired by it from other parties adjoining and south thereof, and erected what is termed its "sand house" on the south line of the tract so conveyed by appellant, and in such position that it would obstruct the road or street, if such there was, along this line. Appellant instituted this suit, alleging that a public road or street had existed along the south line of the land so conveyed by him for a number of years, and that, by reason of the obstruction of said street by appellee, he had been damaged by a diminution in the rental value of some houses owned by him near such obstruction. Appellee answered, denying the existence of such public road or street; and also pleaded estoppel against appellant by reason of his conveyance aforesaid.
Upon the question as to whether or not there was such road or street, the court gave the following instruction to the jury: "To constitute a public highway outside the corporate limits of a town or city, it is necessary that it should have been used by the public as such, and recognized as such by the public officials or tribunals of the county through which it runs, having charge of the public roads, by some official act, such as by designating it upon the official records as such, assigning hands to work it, making appropriations for its improvement, or such other acts indicating an acceptance of it as a public highway; and, in order to constitute a public highway within the corporate limits of a town or city, it is necessary that it should have been used as such and accepted as such by the city council by some act assuming control over it, and sufficient, in the opinion of the jury, to establish that it was accepted and recognized by such town or city as a public highway." If this were a suit to render the municipality liable for negligence in failing to repair the high way, the definition given by the court would perhaps be unobjectionable; but we are of opinion that it is too restricted when the evidence raises the issue as to whether or not a highway had been dedicated to the public, and accepted by it, so as to prohibit the revocation of such dedication. It has been frequently said in this state that, to render the municipality liable for a failure to repair a highway dedicated to the public, it is necessary that it should be accepted by the municipal authorities; no person having the right to impose this burden upon the public without their consent. Gilder v. City of Brenham, 67 Tex. 345, 3 S. W. Rep. 309. And there are expressions in several cases which might be construed as holding that an acceptance by such authorities would be necessary to constitute a public road or street for any purpose. Worthington v. Wade, 82 Tex. 26, 17 S. W. Rep. 520; Railway Co. v. Montgomery, (Tex. Sup.) 19 S. W. Rep. 1015. But we do not understand any of these cases to go to the extent of holding that a highway which has been dedicated to the public may not be accepted in its behalf in other ways than by affirmative action on the part of the municipal authorities, and we understand several of them to indicate quite the contrary view. In Worthington v. Wade, supra, it is said: ...
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Spencer v. Levy
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...attempt to construe the charter they came in conflict with the law as expounded by the Supreme Court. In the case of Albert v. Railway, 2 Tex. Civ. App. 664, 21 S. W. 779, it was "In this case we are of opinion that there was some evidence which raised the issue as to whether or not this ro......
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...was sufficient to prevent appellee from closing these streets we are fully satisfied. Oswald v. Grenet, 22 Tex. 94; Albert v. Railway Co., 2 Tex. Civ. App. 664, 21 S. W. 779. As to whether it was sufficient to render the city of Ft. Worth liable for an accident caused by its neglect in keep......
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