Bowers v. City of Taylor

• Decision Date: 01 May 1929
• Docket Number: (No. 1015-4724.)
• Citation: 16 S.W.2d 520
• Parties: BOWERS v. CITY OF TAYLOR et al.
• Court: Texas Supreme Court

16 S.W.2d 520

BOWERS v. CITY OF TAYLOR et al.

(No. 1015-4724.)

Commission of Appeals of Texas, Section B.

May 1, 1929.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by A. L. Bowers against the City of Taylor and another. Judgment dismissing the suit was affirmed (286 S. W. 590), and plaintiff brings error. Reversed and remanded.

Critz & Lawhon, of Taylor, and W. C. Campbell, of Palestine, for plaintiff in error.

S. I. Reinhardt, of Taylor, and Taylor & Atkinson, of Waco, for defendants in error.

LEDDY, J.

We adopt the statement of the case made by the Court of Civil Appeals as follows:

"Appellant sued the city of Taylor, its mayor, commissioners, manager, and secretary, and the International-Great Northern Railroad Company, seeking first an injunction to prevent the closing of that portion of one of the streets of said city upon and across the railroad company's right of way, and in the alternative prayed for damages to appellant's land by reason of such closing. The trial court sustained appellees' general and special demurrers to appellant's petition, and, upon his refusal to amend, dismissed the suit. Hence this appeal.

"The pleadings in the case are voluminous. Without following the order of plaintiff's pleadings, the following substantial facts appear from his amended petition admitted as true, under said demurrers:

"The city of Taylor has a population of about 10,000, and operates under what is known as the home rule amendment to the Constitution. Main street is the principal business street of said city, and runs north and south. The railroad company's tracks run east and west through the city. The business section lies north of said tracks. In the southwest part of said city, within the corporate limits, just south of the railroad and west from the business section, appellant owned about 77 acres of land, acreage property. This land was bounded on the north for its entire length of 1,952 feet by a public road, and the north line of said road formed the south line of the railroad right of way. It was bounded on the east for a distance of 1,830 feet by Doak street, which ran north and south through the city, intersecting the public road at the northeast corner of said 77-acre tract, and crossing the railroad right of way there. This street had been open and in use for a period of about 30 years, and was dedicated and in use when the appellant purchased this land. It was the only street which crossed the railroad tracks between Main street and the western limits of the city of Taylor, a distance of about a mile.

"In order to avoid congestion of traffic on Main street at the downtown section where it crossed the railroad tracks, the city proposed a contract with the railroad company that, if said railroad company would remove several of its side tracks across Main street, where it had theretofore broken up its trains and done much switching, and decrease the switching there 90 per cent., and would open up another street across its right of way not more than three blocks west of Doak street, the city would close Doak street across its right of way for the exclusive use of the railroad company, for a period of 15 years from January 1, 1925. At an election held in the city of Taylor on September 29, 1924, in which was submitted the question of closing the Doak street crossing under these circumstances, such closing and contract were authorized by a vote of 204 to 28. An ordinance was then passed on October 2, 1924, closing the Doak street crossing for the use of the railroad company, and embodying the terms of the contract with the railroad company. The railroad company made another crossing over its tracks 1,100 feet west of the one closed, thus requiring those who crossed the right of way going north via Doak street to go 1,100 feet further west to do so. Appellant's pleadings do not disclose whether the public road or any streets run east from his property, so as to provide egress in that direction to Main street, where the railroad could then be crossed to the main business section of Taylor. Appellant's chief complaint is that those residing upon his property are thus required to travel 1,100 feet further in order to reach the northern part of the city, and 2,200 feet further in order to reach the business section of the city, than was required before the Doak street crossing was closed."

The Court of Civil Appeals held that plaintiff in error's petition stated no cause of action against the International-Great Northern Railroad Company for any character of relief, nor against the city of Taylor for injunctive relief, but reversed and remanded the cause for another trial as against the city of Taylor, upon plaintiff in error's alleged cause of action for damages against it.

Plaintiff in error asserts that the ordinance constitutes a contract between the city and International-Great Northern Railroad Company to close Doak street, and to grant to the latter an exclusive use of the portion of the street thus closed for a period of 15 years, and is void because it is an attempt to contract away the rights, powers, and authority given to said municipality under the Constitution and laws of this state.

The Court of Civil Appeals correctly held that the city of Taylor, under the home rule amendment, had express authority to "vacate, abandon, and close" its streets, alleys, avenues, and boulevards. Such power is expressly delegated to municipal corporations by the home rule amendment, under article 1175, R. S. 1923. It must be borne in mind, however, that under the same statute (subdivision 17) such cities are given the power to "open, extend, straighten, widen any public street,...