Grace v. Walker

• Decision Date: 07 November 1901
• Citation: Grace v. Walker, 64 S.W. 930 (Tex. 1901)
• Parties: GRACE v. WALKER et al.
• Court: Texas Supreme Court

64 S.W. 930

GRACE v.WALKER et al.

Supreme Court of Texas.

November 7, 1901.

Error from court of civil appeals of Third supreme judicial district.

Proceedings by C. D. Grace against Emily Walker and others to enjoin the obstruction of a street.From a judgment of the court of civil appeals (61 S. W. 1103) affirming a decree in favor of defendants, complainant brings error.Affirmed as to the defendant Shain, and reversed as to the others.

P. C. Thurmond and Chas. D. Grace, for plaintiff in error.Richd.B. Semple, for defendants in error.

WILLIAMS, J.

The plaintiff in error instituted this action to enjoin the defendants in error from obstructing a street in the town of Bonham upon which his land abuts, and to force them to remove obstructions already placed in such street.The plaintiff claimed that the street was legally established by ordinance and was 40 feet wide, while defendants contended that it was never so established by ordinance, but that by dedication by abutting proprietors a street 25 feet wide had been established.Upon plaintiff's contention the obstructions complained of would be in the street, while, if defendants be correct in theirs, their improvements are not in the street, but upon their own land.The district judge found that no street 40 feet wide had ever been established by the ordinance on which plaintiff relied, but that one 25 feet wide existed by dedication, as asserted by defendants, and gave judgment for defendants.This judgment was affirmed by the court of civil appeals.

The facts about which no conflict in the evidence exists, and upon which the decision of this court must be founded, are that prior to 1881 what was known as "Kemps Ferry Road," beginning at Planters street, in Bonham, the course of which was east and west, ran north, between land owned by D. E. Kennedy on the east, and Johnson on the west, until it reached the south line of the property of plaintiff, Grace, which lay just north of Kennedy's.Plaintiff's south line extended further west than Kennedy's north line, and hence the road passed diagonally across the southwestern corner of plaintiff's land, and then again turned north along his western line for a space, and thence changed in a northwestern direction across a 10-acre tract then owned by Fisher, and passed across it and intervening land to and across lands of Chenoweth, and then to and across lands of Cowart.Thus, instead of following the line of Fisher's, Chenoweth's, and Cowart's tracts, the road passed obliquely across them.In 1881 Fisher, Chenoweth, and Cowart appeared before the city council and asked that the street be changed so as to run along their lines, agreeing to donate strips sufficient for this purpose.These proposals where acceded to by the council, and an ordinance was passed fixing the course of this and other streets; the part relating to this matter being as follows: "That the road known as the Kemps Ferry road from the point where it leaves Planters street at E. D. Kennedy's S. W. corner; thence north along Kennedy's and C. D. Grace's west line to J. Q. Chenoweth's S. E. corner; thence west to P. B. Maddray's E. line; thence north to Chenoweth's N. W. corner; thence west to Polly Robert's E. line; thence N. to city limits; be declared a second-class street and known as Red River street, and that the same shall not be less than 40 feet wide."Soon after this was done, Chenoweth and Cowart inclosed their land, leaving outside their fences strips of the width specified in the ordinance.There is evidence as to the direction which the travel took thereafter, but, as there is some conflict in it, this court...