City of Dublin v. Barrett

• Decision Date: 24 May 1922
• Docket Number: (No. 6772.)
• Citation: 242 S.W. 535
• Parties: CITY OF DUBLIN et al. v. BARRETT et al.
• Court: Texas Court of Appeals

Page 535

242 S.W. 535

CITY OF DUBLIN et al. v. BARRETT et al.

(No. 6772.)

Court of Civil Appeals of Texas. San Antonio.

May 24, 1922.

Rehearing Denied June 21, 1922.

Appeal from District Court, Erath County; J. B. Keith, Judge.

Suit by Luke Barrett and others against the City of Dublin and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Allen Beadel and Hickman & Morrow, all of Dublin, and Goree, Odell & Allen, and Ernest May, all of Fort Worth, for appellants.

Chandler & Pannill, of Stephenville, for appellees.

FLY, C. J.

Luke Barrett, J. Lee Carlisle, A. W. Whitfield, R. L. Lucas, and George W. Welch, appellees herein, sought to restrain the city of Dublin and the Fort Worth & Rio Grande Railway Company from closing a crossing over the line of railway in said city, which crossing connects Sheridan and Bennett streets, being in fact the same street called by one name on the east side of the right of way and another name on the west side. It was alleged that the city had passed an ordinance closing the crossing, and that the railway company had closed the crossing, which had been in use by the public for more than 20 years, and that appellees were owners of property near said crossing. The court instructed a verdict for appellees, and perpetually enjoined appellants from obstructing the crossing in question over the right of way between Bennett and Sheridan streets. The uncontroverted evidence showed that the crossing had been used by the general public for over 20 years, had during that time been kept in order by the railway company, which had erected at the crossing a sign naming it a railroad crossing. There was no practical crossing of the railroad within the city limits from the two streets towards the north, and it was three blocks to the south of the two streets to another crossing. The crossing in controversy is used by numbers of people in reaching their churches, and is much used by children in reaching their schools. It is recited in the municipal resolution closing the crossing that it is used by the general public. The city has graded and cared for both Sheridan and Bennett streets up to the right of way of the railway company, and the two streets are among the best graded streets of the city. The crossing was constructed and always kept in good order by the railroad company.

That the crossing was used as a part of the two streets by the general public for over 20 years is shown by the uncontradicted evidence, and that use was at all times acknowledged and acquiesced in by appellants, and the city graded the streets and kept them in good repair to the crossing, which was kept in order by the railroad company, and recognized it as a railroad crossing. Use is the sole test in constituting the way into one which would ripen into a public highway by prescription, and the use is merely as of a highway, and it is not a question of the frequency of the use. If it is free and common to all who have occasion to use it, it is a public highway. Elliott, Roads and Streets, § 197. As said in Speir v. Utrecht, 121 N. Y. 420, 24 N. E. 692:

"Although the owner of land may not dedicate it for a public highway, and may not intend or assent that it shall become such, yet if he permits it to be used in the way just indicated for twenty years it would be deemed a public highway, and he will not be permitted to question the public right."

The city worked Bennett and Sheridan streets to the line of right of way, just as it did all other streets crossing railroad lines. This was all the work required of the city, and the duty to construct the crossing devolved upon...