Ostrom v. City of San Antonio

• Decision Date: 16 May 1901
• Citation: 62 S.W. 909
• Parties: OSTROM v. CITY OF SAN ANTONIO.
• Court: Texas Supreme Court

Page 909

62 S.W. 909

OSTROM v. CITY OF SAN ANTONIO.

Supreme Court of Texas.

May 16, 1901.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Sarah F. Ostrom against the city of San Antonio. From a judgment of the court of civil appeals (60 S. W. 591) affirming a judgment in favor of defendant, plaintiff appeals. Reversed.

Edward Ostrom and James Routledge, for plaintiff in error. Geo. C. Altgelt, for defendant in error.

BROWN, J.

Sarah F. Ostrom sued the city of San Antonio in the court of the Thirty-Seventh district, alleging, in substance, that in that court, on the 24th day of November, 1897, she recovered a judgment against the city which established her title to all of lots 12 and 13, district 1, range 3, of the said city, and that the said court entered up a judgment enjoining and prohibiting the city of San Antonio from thereafter using any part of the said lots as a public highway, road, or street; that from and after the day the said decree was entered to the time of filing the suit, on the 23d day of November, 1899, the city of San Antonio continued, in defiance of the said decree, and against the protests of the plaintiff, to use the said lots as a highway for its carts hauling the garbage of the said city. She alleged her damages at the sum of $5,000. The city pleaded a general denial. The case was tried before the judge without a jury, and judgment was entered that the plaintiff take nothing by her suit. A statement of facts was filed by the judge, but no conclusions of fact or law are contained in the record. The court of civil appeals affirmed the judgment of the district court on the following grounds: "(1) There was no proof that the city directed or authorized the use alleged of this road as a route for wagons and carts used by its employés for carrying the garbage of the city to the dumping grounds. (2) The service which the city undertakes to render in removing garbage is not one undertaken for special advantage or profit to the city, nor an act of strictly corporate concern. It is a service performed in the interest of the public at large."

The undisputed evidence shows that the city had, prior to the entry of judgment in the first suit, claimed the right to use this property as a roadway or street for hauling garbage with the same class of carts and employés, which contention was decided against the city, and, after the city had been enjoined, the use of the land by the carts and employés of the city for the same purpose was continued without intermission, against the protests and over the objections of the plaintiff; that a fence was placed across the roadway, so as to prevent the entry upon this land, which was torn down by the foreman of the carting gang, and the use was continued as before; that, when the passage over the land was obstructed by the plaintiff, the police of the city arrested her for so doing. The superintendent of this class of work for the city testified that the men who were doing the hauling came to him to know how they would get to the dumping ground, and he did not direct them to go over the plaintiff's ground, but told them "to get there the best way they could."

The persons who trespassed upon the plaintiff's land were in the employ of the city, and, if engaged in the discharge of work for which the city would be responsible, whether its officers directed it would be immaterial; and, if the work being done was of the class for which the city was not liable, direction by officers would not make it liable. The evidence in this case shows, without dispute, that the superintendent of the work knew that the employés of the city were using plaintiff's land, and he did not attempt to prevent it. Any one who reads the facts must conclude that the men engaged in the trespass would, under the directions given, understand that they were not forbidden to pursue the same course as before. The facts show an oppressive treatment of the plaintiff by the city's employés, and a disregard of her rights, as well as a violation of the decree of the district court; and, unless the city was exempt by law from liability for the acts of its employés, the district judge should have entered judgment in...