Shelton v. City of Abilene

• Decision Date: 01 February 1935
• Docket Number: No. 1435.,1435.
• Parties: SHELTON et al. v. CITY OF ABILENE et al.
• Court: Texas Court of Appeals

Page 351

80 S.W.2d 351

SHELTON et al. v. CITY OF ABILENE et al.

No. 1435.

Court of Civil Appeals of Texas. Eastland.

February 1, 1935.

Rehearing Denied March 1, 1935.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Suit by S. M. Shelton and others against the City of Abilene and others. From a judgment in favor of defendants, plaintiffs appeal.

Affirmed.

See, also (Tex. Civ. App.) 75 S.W.(2d) 934.

Davidson, Doss & McMahon, of Abilene, for appellants.

Wagstaff, Harwell, Wagstaff & Douthit and Wiley L. Caffey, all of Abilene, and Curtis E. Hill, John L. Green, T. S. Christopher, and James V. Allred, all of Austin, for appellees.

FUNDERBURK, Justice.

S. M. Shelton and others (about 41 in number) brought this suit against the city of Abilene, the Texas & Pacific Railway Company, and the members and chief engineer of the Highway Commission of Texas, to permanently enjoin the defendants from constructing an underpass across a certain described strip of land, as to which it was alleged "that defendant Texas & Pacific Railway Company is the owner in fee simple." The land was alleged to be in the possession of said railway company, and to have been used for a great number of years exclusively for operation of its lines of railway through the city of Abilene; its passenger station and only line of railway through said city being located thereon. Plaintiffs' right, or interest, in the land, or use to be made of same, was alleged to be that when the railway company was the owner of a large tract upon which the town of Abilene was located, it made and exhibited a plat of said town showing thereon lots and blocks, streets and alleys, which plat was recorded in the office of the county clerk of Taylor county, and that all of the lots of said town then owned by the railway company were sold and conveyed according to said map or plat, which was referred to in the conveyances; "that on said map or plat aforesaid, all of the above described land, together with other lands not therein described, was designated by lines on said map entirely enclosing said lands, and indicating the railroad of said defendant company running through the middle thereof, and in said space on said plat or map was written the words `reserved for railway purposes' by which said defendant reserved for said railway purposes only" all of said land.

It was further alleged that the plaintiffs were the successors in title to the original vendees of the lots sold with reference to said map or plat, and that by virtue of the dedication of said town as contained in said map, and by virtue of conveyances made with reference to said map and the reservations and restrictions therein contained, an express servitude and covenant was created in and upon the lands above described in favor of said purchasers of said original lots, and the plaintiffs as successors in interest and remote grantees of such original purchasers "are entitled to enforce the covenant that said lands above described would be used for the sole and only purpose therein designated and for no other purpose." Regarding further allegations of plaintiffs' pleading, it is sufficient to say that it was averred that the defendants were threatening to use the portion thereof between the abutment of Cedar street and the abutment of Butternut street (a strip diagonal across said land and railway tracks) to construct and maintain thereon a pass for automobiles, vehicular and pedestrian traffic, and that such was not a railway purpose, and thereby constitutes an invasion and trespass upon the vested rights of plaintiffs as remote grantees of the original owners of lots in the original town of Abilene. Participation by all the defendants in such purpose was alleged.

Upon the trial it was formally agreed that at the time the original town of Abilene was laid out and platted, the railway company owned all the land (upon which the original town was located), and at that time "the only tracts or parcels of land reserved for public use or purposes was the now existent court-house tract and the now existent federal tract," being blocks Nos. 20 and 31 in Abilene.

The city of Abilene defended on the ground that the building of the underpass was for public convenience and necessary in eliminating traffic hazards because of the crossing of the railroad, and further because of its municipal powers to require the railway company to construct and maintain suitable crossings over said property, and to abandon, change, or alter the same, etc.

The railway company contended that the underpass would enable passengers and vehicular traffic to go under the railway and avoid the existent dangers of grade crossing. It further contended that the underpass was advantageous to the railway company in relieving traffic at said grade crossing and the hazards incident thereto, and that the construction of the underpass would be a railway purpose. It further contended that the underpass would not damage plaintiffs, and further invoked the right of the city of Abilene to make and change grade crossings, etc.

In a nonjury trial the court gave judgment for the defendants, from which the plaintiffs prosecute this appeal.

We shall deal with the questions presented upon this appeal upon the assumption that the plaintiffs, as remote grantees of the original purchasers of the lots owned by them, acquired and have some interest in the use of the strip of land across which it is proposed to construct the underpass. We so held in ...