Bowers v. International-Great Northern R. Co.

• Decision Date: 26 May 1926
• Docket Number: (No. 7009.)
• Citation: 286 S.W. 590
• Parties: BOWERS v. INTERNATIONAL-GREAT NORTHERN R. CO. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

286 S.W. 590

BOWERS v. INTERNATIONAL-GREAT NORTHERN R. CO. et al.^*

(No. 7009.)

Court of Civil Appeals of Texas. Austin.

May 26, 1926.

Rehearing Denied June 23, 1926.

Appeal from District Court, Williamson County; Cooper Sansom, Judge.

Suit by A. L. Bowers against the International-Great Northern Railroad Company and others. Judgment dismissing suit, and plaintiff appeals. Affirmed as to defendant named, and as to defendant city of Taylor affirmed in part, and in part reversed and remanded for trial.

Critz & Lawhon, of Taylor, and W. C. Campbell, of Palestine, for appellant.

Andrews, Streetman, Logue & Mobley, of Houston, and Taylor & Atkinson, of Waco, for appellee International-Great Northern R. Co.

Solon I. Reinhardt, of Taylor, for appellee City of Taylor.

BAUGH, J.

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 track 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 first question raised is whether the city of Taylor, under the facts pleaded, had authority to close said street. Such authority cannot, we think, be seriously questioned. The city of Taylor had brought itself under the terms of the Home Rule Amendment to the Constitution, in compliance with the Acts of the Thirty-Third Legislature, General Laws 1913, c. 147 (articles 1165 to 1182, R. S. 1925), by adopting its charter in accordance therewith. Under article 1174, R. S. 1925, such charter when duly registered "shall be deemed a public act and all courts shall take judicial notice of same." Its charter expressly provided that the city of Taylor should have all the powers conferred by title 22 of the Revised Civil Statutes of 1911 as fully and completely as if in said charter separately enumerated. A similar provision also incorporated all powers mentioned in section 4, c. 147, of the General Laws of 1913 (article 1175, R. S. 1925). This article 1175 expressly gives to cities adopting a charter under said chapter "full power of local self-government," and under section 18 thereof, "enumerated for greater certainty" the express power to "vacate, abandon and close" its streets, alleys, avenues, and boulevards. It is manifest, therefore, that both the Legislature and the Constitution have delegated to the city of Taylor such power of control over its streets. This question was fully discussed by this court in a case somewhat similar to the case at bar in Johnson v. Lancaster, 266 S. W. 565. See, also, City of San Antonio v. Fetzer (Tex. Civ. App.) 241 S. W. 1034; Dallas Cotton Mills v. Industrial Co. (Tex. Civ. App.) 252 S. W. 823. We deem further discussion of it here unnecessary.

Though we do not think an election was necessary to vest the...