Tribble v. Dallas Ry. & Terminal Co.

• Decision Date: 20 January 1929
• Docket Number: (No. 10388.)
• Citation: Tribble v. Dallas Ry. & Terminal Co., 13 S.W.2d 933 (Tex. App. 1929)
• Parties: TRIBBLE et al. v. DALLAS RY. & TERMINAL CO. et al.
• Court: Texas Court of Appeals

Page 933

13 S.W.2d 933

TRIBBLE et al. v. DALLAS RY. & TERMINAL CO. et al.

(No. 10388.)

Court of Civil Appeals of Texas. Dallas.

January 20, 1929.

Rehearing Denied February 23, 1929.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Suit for injunction by Bessie M. Tribble and others against the Dallas Railway & Terminal Company and others, in which the City of Dallas intervened. From a decree denying injunction, plaintiffs appeal. Affirmed.

S. P. Sadler, of Dallas, for appellants.

Beall, Worsham, Rollins, Buford & Ryburn, J. J. Collins, and H. P. Kucera, all of Dallas, for appellees.

LOONEY, J.

Appellants, plaintiffs below, sought injunctive relief, temporary and permanent, against Dallas Railway & Terminal Company, a street railway corporation, to prevent it from constructing and operating a car line over a strip of land 60 feet wide by 720 feet long, being a part of Tremont street, in Junius Heights addition to the city of Dallas. Plaintiffs claim that they own lots in the addition that abut on the part of the street above mentioned, and that they own said strip by fee-simple title, have a perpetual private easement therein, and are entitled to prevent its use as a public street. They alleged further that, by authority of the city of Dallas, the company was threatening to build and operate its street car line over the land, which if done will obstruct and interfere with its future use by plaintiffs, will constitute an appropriation of and be an additional burden upon same, wholly without authority from, or compensation to, them.

In its answer, the street railway company contended that plaintiffs were not entitled to the relief sought, because the strip of land was a part of the public street system of the city of Dallas, by dedication, express and implied, by prescription, and that plaintiffs had estopped themselves to deny such fact; that the city, having exclusive control, had authorized, in fact ordered, defendant to construct its line over the street; and that defendant was proceeding with the work of extension when interrupted by temporary injunction. The city of Dallas intervened, and combated plaintiffs' suit, claiming that the strip of land was a public street by dedication, both expressed and implied, also by prescription, and that plaintiffs were estopped to deny such fact; that, under its charter, absolute dominion was given it over its streets; that the proposed use of same by the street railway company is entirely lawful, and will not constitute a taking of property nor impose an additional burden on the land within the meaning of the Constitution.

The case was tried without a jury, and resulted in a decree dissolving the temporary writ, theretofore issued, and refusing plaintiffs the permanent relief sought, from which they have appealed.

The record discloses that the city of Dallas, by an order entered March 23, 1927, required defendant company to extend its line over Tremont street, including the strip of land in question. The company was preparing to obey the order, was ready to begin the work of extension, and would have completed same, but for the injunction.

The first question for consideration is: Was this strip a part of the street system of the city of Dallas at the time the order was made? We think so, for the following reasons:

Plaintiffs' claim of ownership and interest in the land is based on certain language contained in deeds executed prior to November 4, 1909, by Highland Realty Company, the common source proprietor, conveying to them, and to their predecessors in title, the lots they now own that abut on the strip in question. The language employed is as follows: "It is expressly agreed and understood, however, that the strip of land 60 feet wide and adjoining the above described property on the S. E. is not a public street and has not been dedicated to public use, but that the same is the private property of the grantor, it being expressly understood, however, that grantee herein is hereby conveyed a perpetual easement over, along and upon said strip, the said easement to run with * * *" the particular lot conveyed.

This language forbids the idea that any interest in the strip of land, other than a private easement, was conveyed, as the fee was expressly retained by grantor. Subsequently, on November 24, 1909, Highland Realty Company, by warranty deed, conveyed the land to J. S. Kendall, who, on the same day, executed and had recorded in the deed records of Dallas county a formal dedication of same to the public for use as a street. The language of dedication is as follows: "* * * That I, J. S. Kendall, * * * do hereby adopt the sub-joined map as the plat of Junius Heights Second Addition to the City of Dallas, Texas, and do hereby dedicate to the public use forever the streets and alleys indicated and shown upon the said plat."

One of the streets indicated on the plat is Tremont avenue, of which the strip 60× 720 feet forms a part.

Through conveyances from realty company to plaintiffs and their predecessors, a private easement in the strip was vested, and through the conveyance from realty company to Kendall and the dedication by Kendall to public use, a public easement in the strip vested in the city as the organized representative of the public. These interests are not conflicting, and may exist in harmony at same time. Dealing with similar facts, in the case of Dallas Cotton Mills v. Industrial Co., 296 S. W. 503, 504, the Commission of Appeals used this language: "The right which the city acquired was that of a public easement; the right which the individual purchaser acquired was a private easement. The two could exist in contemporaneous and harmonious operation, or the one could be destroyed without necessary impairment of the other."

So, we conclude that, the private easement in the strip acquired by plaintiffs from Highland Realty Company did not prevent its being later dedicated to public use, as a street, by the owner of the fee. The city, under its charter, was entitled to exclusive control, and in the interest of the public, was authorized to permit, and even require, defendant railway company to extend its line over same.

The evidence also showed that plaintiffs, by implication, dedicated whatever interest they owned in the strip to the public as a street, and are now estopped to deny the fact.

This street was macadamized with rock and gravel prior to the opening of Junius Heights addition, and has been continuously used by the public as a street since 1909, without protest or objection from plaintiffs. After the addition became a part of the city on November 30, 1918, the authorities assumed control of the streets of the addition, worked, graded, and drained them. Prior to 1924, plaintiffs and other abutting property owners asked the city by petition to have "Tremont Street" paved, including the strip in question. The city granted the petition, advertised for paving bids, let the contract, enacted all necessary ordinances fixing liens, etc., on abutting property, and paid from public funds all costs of the proceedings and for paving street intersections. These facts show conclusively that plaintiffs recognized the strip as a part of Tremont street, for only on this basis were they justified in petitioning the city to have same paved.

Our courts recognize the doctrine that a dedication of land...