Compton v. Waco Bridge Co.

• Citation: 62 Tex. 715
• Decision Date: 22 June 1883
• Docket Number: Case No. 3942.
• Parties: R. D. COMPTON ET AL. v. WACO BRIDGE CO.
• Court: Supreme Court of Texas

62 Tex. 715

R. D. COMPTON ET AL.

v.WACO BRIDGE CO.¹

Case No. 3942.

Supreme Court of Texas.

Jun. 22, 1883.

APPEAL from McLennan. Tried below before the Hon. L. C. Alexander.

This was a suit by the Bridge Company against Compton, then the marshal of the city of Waco, seeking to perpetually enjoin him from executing an ordinance of the city of Waco, which is as follows: “Ordered that the marshal be and is hereby instructed and authorized to proceed at once to remove any and all obstructions that may exist in Elm and Washington streets that in any way prevent the public from free access to and crossing the river at the points heretofore used as public fords,” alleging that by virtue of its charter authorizing the construction and maintenance of a toll bridge across the Brazos river in the city of Waco, and by virtue of authority granted by the city council, that it had erected plank fences as wings to its bridge, which were necessary to the proper use of the bridge in crossing stock and to prevent the same from falling over the bluff of the river. These fences were erected on a reserve as public ground. And that neither Washington nor Elm street ran across the same to the river. Also claimed to own the land on the east side of the river opposite to the termini of Washington and Elm streets, and claimed the right to close the fords by reason of such ownership. That unless restrained Compton would remove its fences, etc.

The city of Waco made itself a party defendant, and by answer claimed, amongst other things, that the reserve had from the first been dedicated to public use. That the highways leading to the ferries had been recognized and used for a great number of years. That the grant from the city of Waco to appellee did not authorize the latter to erect the fences across these highways, etc.

Upon the trial a jury was waived and cause submitted to the court; judgment for appellee perpetuating the injunction.

Harrison & Smith and Herring & Kelley, for appellants, cited: San Antonio v. Lewis, 15 Tex., 388;Oswald v. Grenet, 22 Tex., 94;Williams v. Davidson, 43 Tex., 1; Dillon on Mun. Corp., vol. 2, §§ 444, 445, note 2; Id., § § 432, 434, 512, note 2; Id., § 513, note 1; Id., §§ 507, 556, 557; Green's Brice's Ultra Vires, p. 63, and note; Cooley's Const. Lim., *549, 545; 2 Smith's Lead. Cas., 170; Adams' Equity, 457, top note 1; State of Ala. v. Mayor, etc., of Mobile, 5 Port., 279; Covington v. McNickle, 18 Ky., 289; Gilmer v. Carrolton, 6 B. Mon., 680; Kennedy v. Covington, 8 Dana, 50.

As applicable to public easements, they cited: Oswald v. Grenet, 22 Tex., 94;15 Tex., 118; Angell on Highways, secs. 131, 132, 134, 142, 143, 144, 145, 149, 162, 323, 137, 138, 154, 27, 28, 2, 3; Washb. on Real Prop., vol. 2, p. 293 (Book 2, marginal page 39); Id., p. 277 (marginal page 27); 2 Dillon on Municipal Corporations, secs. 493, 500, 503, 505, 507, 556, 557; 2 Smith's Leading Cases, 170; 3 Kent, margin, 432, 451.

That the obstruction was a nuisance and should be abated, they cited: Williams v. Davidson, 43 Tex., 1; 3 Blackstone, ch. 1, p. 6; ch. 13, p. 220; 2 Dillon, § 520 and note 2, §§ 515, 521, 523; Angell on Highways, secs. 3, 5, 27, 143, 222, 224; State of Ala. v. Mayor, etc., of Mobile, 5 Port., 279;7 Johns. (N. Y.), 106;State v. Woodward, 23 Vt., 92;Millhan v. Sharp, 27 N. Y., 611, 625.

Sleeper, Jones and Kendall and Clark & Dyer, for appellee, on the right of the city of Waco and the police court to grant the company the privilege claimed, cited: Piatt v. C. & C. Bridge Co., 8 Bush (Ky.), 31;Olcott v. Banfil, 4 N. H., 537;Langley v. Gallipolis, 2 Ohio St., 107;Com. v. Alburger, 1 Whart. (Pa.), 485-6;Cook v. City of Burlington, 36 Iowa, 357;Cook v. City of Burlington, 30 Iowa, 94;Newport v. Taylor, 16 B. Mon., 804-5;Chicago v. McGinn, 51 Ill., 266; Penn Township v. Perry Co., 78 Pa. St., 457.

On estoppel claimed against the city, they cited: Herman on Estoppel, 562; Grant v. City of Davenport, 18 Iowa, 179.

That no right of way or easement was shown, citing: Worth v. Dawson et al., 1 Sneed (Tenn.), 59; Biddle v. Ash, 2 Ashm. (Penn.), 211; Stacey v. Miller, 14 Mo., 478;Hutto v. Tindall, 6 Rich. Law (S. C.), 396; Hogg v. Gill, 1 McMullan, Law (S. C.), 329; State v. Thomas, 4 Harr. (Del.), 568;Harding v. Jasper, 14 Cal., 642; Hervins v. Smith, 11 Metc. (Mass.), 241; Phipps v. State, 7 Blackf. (Ind.), 512; Angell on Highways, 150, 151; Sims v. Davis, Cheves (S. C.), 1.

The state having granted the bridge company the franchise, neither it nor the city could open other ways to avoid paying toll, without compensating the company, citing: Croton Turnpike Co. v. Ryder, 1 Johns. Ch., 611;Newburgh, etc., Turnpike v. Miller, 5 Johns. Ch., 101;Auburn Plank Road Co. v. Douglass, 12 Barb., 553; Smith v. Harkins, 3 Ired. Eq. (N. C.), 613; Townsend v. Blewett, 5 How. (Miss.), 503;Cheshire Turnpike Co. v. Stevens, 10 N. H., 133;Thompson v. N. Y. & Harlem R. R., 3 Sandf. Ch., 625;Piscataqua Bridge v. N. H. Bridge, 7 N. H., 35; High on Injunctions, §§ 580-582.

WATTS, J. COM. APP.

It becomes necessary in the disposition of this appeal to determine the question as to the power of the city council to adopt the ordinance directing the city marshal to remove all obstructions from certain streets and ways. At the time this ordinance was adopted, the charter among other things empowered the council “To make regulations to secure the general health of the inhabitants and to prevent and remove nuisances. To open, alter, abolish, widen, extend, establish, grade, pave or otherwise improve, clean and keep in repair streets, lanes, avenues or alleys. To provide for the inclosing, improving and regulating all public grounds belonging to the city. And for regulating the use of the city and the river and banks thereof, and the commons adjacent thereto.”

As between the legislature and the municipal government, the former has the paramount and unrestricted authority over the streets and alleys of the city as public highways; and by virtue of this authority it may authorize the placing of obstructions in these streets or legalize existing obstructions which might otherwise be deemed nuisances. The legislature may also delegate this power to the municipal authorities, and vest in them such authority and control over the streets and alleys as might be thought best for the general good.

The specific authority given to the council by the sections of the charter quoted above, when considered in conjunction with the general powers conferred by the charter, must be considered as ample authority to enable the city council to protect and preserve the streets, alleys, etc., for the use of the inhabitants and general public.

In Doublin v. Mayor, etc., of New Orleans, 1 Martin, 185, the supreme court of Louisiana held that the corporate authorities had the power to declare a house erected in a street a nuisance, and to cause its removal. The same court, in Herbert v. Benson, 2 La. An., 771, held that the corporate authorities had the power to cause the removal, at any time, of a building erected on common or public grounds, and that at the expense of the person who erected the same.

While Judge Dillon, in his work on Municipal Corporations, sec. 377, says: “A city charged by law with the duty of preventing obstructions of a river within its limits may, by its own act, and without proceeding by indictment, abate or remove anything which obstructs the free and public use of the river.”

The same author, in section 95, says: “So where it is made the duty of a city to remove, as far as it may be able, every nuisance which may endanger health, the courts, unless the power be transcended,cannot ordinarily interfere. But the power to abate nuisances, like all other municipal powers, must be reasonably exercised, etc. And generally the judicial tribunals will not interfere with municipal corporations in their internal police and administrative government, unless some clear right has been withheld or wrong perpetrated.”

It is made an offense by article 405 of the Penal Code for any person to obstruct any public road or highway or any street or alley in any incorporated town or city.

That an obstruction placed in a street or other highway, without authority of law, such as a building or a fence across the same, is a nuisance, and may be removed by the local authority, would seem to admit of no doubt. But in view of the specific authority conferred upon the city authorities of Waco, the right to exercise such power seems to be indisputable. Every person by a resort to the courts of the country has a complete remedy to prevent an arbitrary or wanton exercise of that authority. To force the municipal authorities to a suit in the courts to secure the removal of obstructions from the streets would, to a considerable extent, defeat the objects and purposes contemplated in the creation of municipal governments.

We conclude that the city council had the power to adopt the ordinance under consideration, provided the other facts existed which would authorize the exercise of that power.

Without undertaking to determine how, or to what extent, an easement might be obtained upon this “reserve,” for that question is not presented in this connection, the proposition for consideration is, Did the municipal authorities grant to appellee a right to this “reserve” to the extent asserted? For the purposes of the argument it might be conceded that the city council had the power to grant to appellee a reasonable easement or charge upon a portion of this reserve, for cattle pens and other things necessary in conducting its business. But the question remains, Did the council in fact grant the right to the extent claimed? No such intention is apparent either from the language of the application or the resolution. At most it but conferred upon appellee the right to use such reasonable portion of the “reserve” as would be necessary in conducting its legitimate business. This is...