City of Fort Worth v. Southwest Magazine, 16328

• Decision Date: 18 May 1962
• Docket Number: No. 16328,16328
• Citation: 358 S.W.2d 139
• Parties: CITY OF FORT WORTH, Appellant, v. SOUTHWEST MAGAZINE, Appellee.
• Court: Texas Court of Appeals

Page 139

358 S.W.2d 139

CITY OF FORT WORTH, Appellant, v. SOUTHWEST MAGAZINE, Appellee.

No. 16328.

Court of Civil Appeals of Texas, Fort Worth.

May 18, 1962.

Rehearing Denied June 15, 1962.

S. G. Johndroe, Jr., City Atty., and Jerome H. Parker, Jr., Asst. City Atty., Fort Worth, for appellant.

Treadaway & Blumrosen, Lubbock, McGown, Godfrey, Logan & Decker and Winfred Hooper, Jr., Fort Worth, for appellee.

PENFRO, Justice.

The trial court entered a summary declaratory judgment in which it decreed that the plaintiff Southwest Magazine had such interest in a spur railway track owned by the Chicago, R. I. & Gulf Railway Co. in Seventh Street as to entitle plaintiff to damages against the City of Fort Worth for removal thereof.

By ordinance effective Feb. 8, 1907, the City provided: 'Section 1. That the Chicago Rock Island & Gulf Railway Company is hereby authorized and empowered to construct, equip, operate and maintain a line of railway over, upon and across the following named streets in the city of Fort Worth, Tarrant County, Texas, to-wit: one track in the center of Seventh Street, from the east line of Pecan Street to the east line of Rusk Street, crossing all intervening streets by whatever name known, between said points, with the right and privilege of constructing, operating, equipping and maintaining a spur or switch tract on either side of said main tract, opposite each block of ground located between Pecan Street on the east and Rusk street on the west, so as to make each block of said ground what is known as 'Tract property." Section 2 provided in part: 'It shall be the duty of The Chicago, Rock Island & Gulf Railway Company to construct and maintain its said line on Seventh Street, between the points above named, and the spur tracts on either side to accommodate each block between Pecan and Rusk Street * * *.'

A spur track serving Seventh Street between Grove and Jones Streets is the subject of this controversy.

The Chicago, Rock Island & Gulf Railway Company is not a party to the instant suit.

The City appealed from the judgment.

It contends: 'Since appellee cannot, as a matter of law, have a vested right or irrevocable special privilege to have a railroad spur track permanently maintained in the street superior to the right of the public to use the street and superior to the right and duty of the city's legislative body to control the public streets, the court erred in rendering summary judgment against appellant.'

Plaintiff defends the judgment on the contention that the spur track constituted an easement superimposed on the street easement of the City and that it had a vested right to such easement subject to protection under the State and Federal Constitutions, and was entitled to compensation for the easement and removal of the track.

Plaintiff has owned the lot at the corner of Seventh Street since 1923. It has been doing business at that location since 1922. The area was platted and subdivided into town lots in 1856, and the dedication reconfirmed in 1877. In 1907, or soon thereafter, the spur track in question was constructed and put into operation and has continuously served that particular block. The track is located entirely within the confines of Seventh Street.

The building on plaintiff's premises was erected in 1907 and was designed for the purpose of operating a printing plant; newsprint used in the printing operation is received in large, heavy cumbersome rolls, and delivered by the Railroad on the spur track. A heavy hardship will befall plaintiff if it cannot continue the use of the spur, both because of loss of customer purchases and cost of moving.

Although the ordinance heretofore mentioned did not fix a time limit for the franchise and 'privilege of * * * operating * * * and maintaining a spur', the City's charter then in force and effect provided that no franchise for a longer period than twenty-five years should ever be granted or given by the City of Fort Worth. The franchise to the Railroad therefore expired in 1932. The record in the instant suit is silent as to any extension of the old or grant of a new franchise to the Railroad.

As a general rule the owner of a lot or a tract of land abutting upon a street acquires the fee to the center of the street subject only to the easement existing in favor of the public. Quanah Acme & P. Ry. Co. v. Swearingen, Tex.Civ.App., 4 S.W.2d 136; 39 Tex.Jur., p. 584, Sec. 51. Under the police power, however, the use of property may be restricted to reasonable exercise when public safety or convenience so requires. City of Fort Worth v. Southwestern Bell Tel. Co., 5 Cir., 80 F.2d 972.

In J. M. Radford Grocery Co. v. City of Abilene, 34 S.W.2d 830, the Commission of Appeals held, in a case where the city had previously granted an abutting owner permission to build a platform in the street flush with the curb, that primarily the platform was erected and used by the company for private purposes and did not vest the company with a permanent property right. It was held the city was without power thus to surrender its authority over any portion of the street or to authorize the company permanently to appropriate to a private use the part of the street upon which the platform stood.

In case of conflict of interest between the public using the street and the railroad, the interest of the public is paramount, and the state may constitutionally insist that the streets be kept free of danger. Erie R. R. Co. v. Board of Public Utility Commissioners, 254 U.S. 394, 41 S.Ct. 169, 65 L.Ed. 322.

It was held in City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640, that, while the right of access of an abutting owner cannot be...