"Washington Avenue is now a paved, public thoroughfare in the City of Houston, beginning for its east end at Buffalo Bayou on the north side thereof between Third and Fourth streets, then running westward through the city into outside connections, and constitutes one of the main arteries of travel in, into, and out of Houston; at the time of the filing of this suit, which has to do more immediately with the section of it lying between Sixth street on the east and Ninth (or Meek) street on the west, where its width was 80 feet, it was bounded on its north side by the present depot, yards, and terminal facilities of the appellee railroad companies — the H. & T. C. and the T. & N. O.—, and on its south side by appellant's properties, the Shepherd Laundries Company, the Brazos Hotel, and other business establishments; it had then been used as a public way of such relative position in and relationship toward the general travel within and through the City to the extent that, many decades before, it had become a dedicated street within the meaning of R. S. Article 5517, as the recorded maps, the history of the City, and the other evidence makes manifest; such travel at that time had a habit of flowing rather freely to and fro within, into, and out of the City along Washington east and west for the distance between the streets specified through Sixth street as an inlet or outlet.
"In 1927, for $52,500.00 cash, appellant bought the property he still owns at the corner of Ninth (or Meek) street on Washington, fronting 103 feet on the south side of the latter and running back 89 feet on the former, purchasing with reference to its location on these two public streets as so then existing and describing it, both as `lots 6 and 7 in Block B-45, north side of Buffalo Bayou in the City of Houston', and as `also known as 813-15-17-19-21, Washington Avenue', which property, while improved with business buildings for its entire extent and so abutting 103 feet on Washington, does not abut upon that particular part of it `the City is attempting to close, but lies approximately 230 feet west of that portion * * * and is separated from that portion by an intersecting street known as Melnar or Eighth street, which runs south from Washington Avenue, but does not extend in a northerly direction across Washington Avenue.'
"During 1926 the appellee railroad companies had considered the erection of a new passenger station entirely on their own property approximately at the same location as their present one, and had prepared tenative plans therefor, the consummation of which, their executive vice-president testified, would have cost them about a million dollars less than will the completion of the plans for the same purpose they subsequently adopted and are now carrying out in collaboration with the City of Houston.
"Early in 1927, the City of Houston, contemplating a rather general public improvement program in that section of the City, with the further purpose of contributing to the elimination of traffic hazards and the control of flood waters in Buffalo Bayou, acting at first through its `City Planning Commission' and subsequently by its Mayor and other officers, began negotiations with the two railroads looking to their changing the new station plan above outlined so as to conform instead to a different one the Planning Commission had devised, which contemplated the City's closing, deeding, and turning over permanently and exclusively to the Railroads for that purpose so much of Washington Avenue as lay between the west line of Sixth street and the east line of Eighth street, and the building of the new Southern Pacific depot and terminals on that part of Washington, with a consequent rerouting of adjacent streets to fit.
"The evidence adduced on the hearing sustains the finding that as the railway station is now located and as the new station was intended by the Railroad Company to be located on the north side of the street and immediately fronting thereon, the traffic along the street was frequently greatly congested and the crossing of the street by pedestrians going to or from the station was dangerous and the use of the street at such times hazardous to the public, and that at least one person had theretofore been killed in crossing the street, and that the change of the location of the station in accordance with the plan of the City greatly reduces such dangers and hazards.
"Such change being thereafter mutually agreed upon, the three parties made a joint-enterprise of the undertaking, which the City's mayor testified was commonly referred to as `the Southern Pacific Project', in the way that is in controlling features, evidenced by, first, an original contract in writing between them of date July 17, 1929, second, an alternate like contract of the same date, and, third, an ordinance passed on January 28, 1931, by the City Council of the City, as in compliance with the latter's contractual obligations so assumed, which three documents are copied in full in the official Statement of Facts in this cause that accompanies this certificate and is asked to be considered a part thereof for the purpose of including them, the first one from pages 3 to 21, inclusive, the second one from pages 115 to 133, inclusive, and the third one from pages 22 to 45, inclusive, and also including the map found between pages 21 and 22 of such statement of facts, showing the location and connections of the streets involved in the proposed plan of the City.
"The hearing disclosed not only that the original contract had already been measurably and mutually executed—the Mayor testifying that the City had spent and contracted to spend practically all of the $1,750,000.00 provided by its bond-issue for the project, while the Railroads had spent $825,000.00 in purchasing the Brazos Hotel and Shepherd Laundries properties, which were then in process of demolishment, as well as paid one-half the cost of two underpasses—but also that the purpose of all parties to it was to fully carry out all their joint and several undertakings according to its terms as soon as practicable—that is, the City, after having all existing street-car tracks and all subsurface structures removed therefrom, would actually `vacate, abandon, close and release to the Railroads,' `all that part of Washington Avenue as now located lying and being situated between the west line of Sixth Street or Acuff Street and the east line of Eighth or Melnar Street,' `so that hereafter there shall not be vested in the City of Houston, or the people of said City, or in any person whomsoever, any right, title, or claim, to the same, or any part thereof, as a street or passway', and would `make, execute, and deliver to said Houston and Texas Central Railroad Company the quit-claim deed or conveyance of the City of Houston granting, bargaining, selling and conveying to the said Railroad Company, and its successors and assigns, all of the right, title, interest, and claim of said City of Houston, to each and all of the said several tracts and parcels of land.' While upon their part, the Railroads would `in consideration of the * * * agreements of the City herein contained * * * with all due diligence, as promptly as requisite and practicable, construct a new passenger station in what is now Washington Avenue, between Eighth or Melnar Street, and Sixth or Acuff Street.'
"Within a few weeks after the quoted ordinance was passed, appellant—expressly suing both for his individual and private benefit as a tax-paying abutting-owner on Washington, and as a member of the public and for its benefit, especially for that of all other members...
