Williams v. Davidson

• Decision Date: 01 January 1875
• Citation: 43 Tex. 1
• Parties: JORDAN WILLIAMS AND OTHERS v. QUINCY DAVIDSON AND OTHERS.
• Court: Texas Supreme Court

43 Tex. 1

JORDAN WILLIAMS AND OTHERS

v.QUINCY DAVIDSON AND OTHERS.

Supreme Court of Texas.

1875.

APPEAL from Victoria. Tried below before the Hon. D. D. Claiborne.

Davidson and others claimed to be owners of an iron bridge which spans the Guadalupe river at the town of Victoria. The town tract, consisting of four square leagues, lies in nearly equal parts upon each side of the river; while the town proper, one mile square, lies upon the east side. Between the blocks and lots of the town proper and the river's edge, there is a reservation seventy-five varas wide for public uses, and called the levee; and on the opposite side there is a like reservation, between the river and the farm lots lying opposite the town proper. The bridge abuts on this reservation on each side, and connects with the town by a short road or approach, that has been made across the levee, and which strikes obliquely on the streets of the town proper.

The plaintiffs alleged themselves to be residents of the town tract, on the west side, or residents of the town proper, owning and cultivating land on the west side, and they brought this suit to enjoin the defendants from charging them toll for crossing the bridge, and to compel the defendants to allow a free passage across it to the plaintiffs, their families, and teams, and to all other residents of the town tract of Victoria.

The petition of the plaintiffs set out that they sue for them selves, and all other inhabitants of the town tract. They alleged that the bridge is situated at the foot of Bustamente street, and in a highway of the town; that it touches the west bank of the river, where the roads from Goliad and other places cross it, and is therefore part of the public highway leading into the town from the west; that the land upon which the bridge stands is the property of the town, held in trust for the benefit of the inhabitants; that the defendants demand toll of the plaintiffs and other citizens of the town tract, at half rates for ordinary crossing, and at full rates when engaged in transporting merchandise, etc.; that defendants claim the right to keep the bridge and demand toll, under a contract made by the town with J. O. Wheeler, in 1865, which contract was sold by Wheeler's administrator after his death, and now belongs to defendants; that under the contract with Wheeler, he was to have the exclusive right to keep a toll bridge for fifteen years; he was to erect a wooden bridge and keep it in repair, and rebuild it if destroyed; he was to have the privilege of obstructing the fords of the river up the town tract, and keeping them obstructed, and was to allow the people of the county to pass free over the bridge in their ordinary crossing, but not when driving stock, transporting merchandise, etc. It was also stipulated that the town would not keep or authorize any other bridge or ferry, and that at the end of fifteen years the bridge should become the property of the town. The petition further alleged, that after Wheeler's death, the bridge was destroyed by high water, and the contract or franchise was sold; that afterward, modifications of the contract were made, first by agreement of the town council with the first purchasers, and afterward with the defendants, by which agreements it was attempted to confirm to the defendants all the rights held by Wheeler, with the modifications that the term should be extended for ten years longer; that the defendants should build an iron bridge; that they should pay over to the town twenty-five per cent. of the net income; that the free crossing should be abolished, and that the inhabitants of the town and county should be charged toll at half rates for their ordinary crossing, and full rate when transporting merchandise, etc. The petition further alleged that the County Court of Victoria county had fixed the rates of toll for the bridge, but had not authorized the defendants to erect a toll bridge; that the defendants were not incorporated, and that no authority to erect a toll bridge had been granted to them by the Legislature of the State. That, in 1865, there was a good ford across the river about three hundred yards above the site of the bridge; that Wheeler obstructed this ford, and that the defendants had kept up the obstructions, and that the municipal government of the town had acquiesced in these obstructions under the contract, and had abstained from establishing other fords, ferries or bridges.

The relief prayed for was, that the defendants might be “perpetually enjoined from demanding or receiving toll for the passage of any residents of the town of Victoria, or of the property of such residents, over the bridge of defendants herein described; or over any bridge they, under their said contracts, may erect in place of the present, should the same be destroyed; or over any ferry that the defendants may use in place of said bridge, should the same be destroyed.”

By amendment, the plaintiffs afterward alleged that Bustamente street, by a deflection, crossed the levee and reached the bridge, and that the highway from the west crossed the levee to the bridge on the west side. They also alleged that their land, on the west side of the river, was depreciated in value, because they had to pay toll on the bridge in hauling the products to market.

By further amendment, they excepted the Hon. T. C. Barden (the judge of the court) from the inhabitants of Victoria, for whom they sued, and for whom they prayed the relief above stated.

The defendants excepted to this petition, on the ground that the matters and things alleged in it, did not entitle the plaintiffs to the relief they asked, nor to any relief that could be granted under their prayer for general relief.

The court overruled these exceptions, and this ruling was assigned for error.

The defendants answered. In addition to a general denial, they set up special defenses, as follows:

“ First. They admitted that they owned an iron bridge, which they had erected at great expense, under a contract with the town of Victoria, and that they charged toll from the plaintiffs and others, whenever they chose to cross the bridge.

Second. They set up the contract made by the town with Wheeler, April 17, 1865, which they alleged was made as a substitute for and in extension of a previous contract, made by the town with Owens & Sutton, in 1849, and of which Wheeler had become the owner. They also set up the modifications of the contract of 1865, made by agreement between the defendants and the town council. They insisted that the town of Victoria had the legal right and power to make the contracts, and to make the modifications of them; that the town of Victoria had always had and exercised the right and power to establish ferries or toll bridges across the Guadalupe within her limits; that she derived this power from her organization under the colonization laws of Coahuila and Texas, and also from the provisions of her charter granted by the Republic of Texas, on the 5th of February, 1840.

Third. That the town of Victoria had for more than thirty years claimed and exercised the exclusive right to establish and keep either a ferry or a toll bridge across the Guadalupe river, within the town tract; and for the same length of time had claimed and exercised the right to grant, by contract, to individuals, the exclusive privilege of keeping either a ferry or a bridge, as the case might be, and that this claim and right of the town had been recognized, for the same length of time, by the County Court of Victoria county; that this right was recognized by said court by granting license to the town to keep a public ferry--which license was granted in 1840, and afterward, till the first bridge was finished in 1851, and was granted thereafter whenever a resort to a ferry became necessary by reason of the destruction of the bridge; that said court recognized the right of the town to grant the exclusive privilege of keeping a toll bridge; for that in 1849, after the town had, by contract, granted to Owens & Sutton the exclusive right to keep a toll bridge for a term of twenty years, the said court, by order, granted license to said Owens & Sutton to keep such toll bridge for twenty years from first of January, 1850--the court binding itself to renew the license annually, if necessary; and that said court had further recognized this right, by making orders, from time to time, to establish and regulate rates of toll upon the bridge erected by Owens & Sutton, upon the several bridges erected by Wheeler, and upon the iron bridge erected by the defendants.

Fourth. The answer further stated that the bridge built by Owens & Sutton was washed away; that J. O. Wheeler became the owner of their contract, and that he erected a new bridge at a new place, some one hundred and fifty yards further down the river; and that this bridge was destroyed by high water during the war. That in April, 1865, the town of Victoria and said Wheeler made a new contract, the old contract then having about five years to run. By this new contract, Wheeler agreed to build a new bridge, with the privilege of keeping the same as a toll bridge for fifteen years from that date. That Wheeler erected the bridge called for by his contract, but that after his death, and in 1869, it was destroyed by high water; that the contract or franchise was sold by his administrator, and afterwards became vested in the defendants; that it had been several times modified, by consent of the town and defendants, and that under the contract, as modified, these defendants had erected an iron bridge, at the site of the Wheeler bridge, and at a cost of more than fifteen thousand dollars.

Fifth. The defendants denied that they had demanded of the plaintiffs, or others, any tolls, except as they were entitled to demand the same under the contract with the town, and according to the rates established by the County Court.

Sixth. The defendants...