City of Atlanta v. Texas & Pacific Railway Co.

120 S.W. 923, 56 Tex. Civ. App. 226, 1909 Tex. App. LEXIS 473
CourtCourt of Appeals of Texas
DecidedMay 27, 1909
StatusPublished
Cited by18 cases

This text of 120 S.W. 923 (City of Atlanta v. Texas & Pacific Railway Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Atlanta v. Texas & Pacific Railway Co., 120 S.W. 923, 56 Tex. Civ. App. 226, 1909 Tex. App. LEXIS 473 (Tex. Ct. App. 1909).

Opinion

HODGES, Associate Justice.

This is a suit instituted by the appellant against the appellee to recover penalties provided for in article 549c of the Bevised Civil Statutes, and to compel the appellee to repair and keep in proper condition for use a portion of its roadbed and right of way which is crossed by Thomas Street, alleged to be one of the public streets of the City of Atlanta. The petition alleges that the City of Atlanta ivas incorporated many years ago under the general laws of Texas; that the appellee railway company owns a right of way about 200 feet wide running practically north and south through said city; that in 1874 the company owned 111 acres of land in Cass County, upon which it laid out and established the town of Atlanta; that the tract was laid off into blocks, lots, streets and alleys, and among the streets that were established by the defendant company was Thomas Street; that the town was laid off on both sides of the railway track, the streets running east and west and crossing the rail *228 way; that Thomas Street was laid off running nearly due east and west and crossing the railway track of the defendant company just south of the depot; that the railway company made a map of the town, showing the streets, blocks and alleys, and had the same recorded in the office of the county clerk of Cass Count}'. It is further alleged that since 1876 Atlanta has been an incorporated city having a mayor, city council and other officers provided for by law; that it has established and adopted the streets which had been laid off and plotted by the railway company, and from thait time up to the present Thomas Street has been a public street, and was known and recognized as such by the public generally and by both the plaintiff and the defendant in the suit; that there were many residences, some churches and business establishments situated on Thomas Street, and it was a thoroughfare much used by the public; that for more than thirty years many persons, within the knowledge of the defendant company, had daily crossed the railway track on Thomas Street, to and from both sides of the railway right of way; that the said street had been worked by .the City of Atlanta for more than thirty years on both sides of the railway track. It further alleges that th.e appellee owned the lots in that part of said city laid out upon the map, and had sold them according to the map to various parties for residence and business property; that all the parties who had purchased lots believed that, Thomas Street crossed the railway track and extended on both sides, as shown by the map. It charges that the railway company for the last year and up to the present time has neglected and refused to keep that part of its roadbed over and across which Thomas Street passes in proper condition for the use of the traveling public; that the crossing is now and has been continuously for the last twelve months in such condition that it was impossible for the public to use that part of the street. It is further alleged that in December, 1906, the city council of Atlanta ordered the city marshal to have the defendant place crossings over its said road in a passable condition, and on the 12th day of December of that year the said city marshal served a written notice upon the section foreman at that place notifying him under the provisions of the statute to put the crossing in proper condition for use of the traveling public. The petition further charges that notwithstanding the condition of the right of way crossing and the notice that had been given to the section foreman, the company had failed and refused to place and keep in repair that part of its right of way over which Thomas Street crosses. It concludes with a prayer for judgment requiring .the defendant company to place and keep the crossing in repair, and for penalties for $25 a week for each week since the service of the notice. The railway company answered by general demurrer and by general denial. It specially denied that it had ever made any dedication for public use of that portion of its right of way shown to be between the two divisions of Thomas Street; that this had been reserved in the map referred to, and by the company generally, for railway purposes. And it also alleges other facts not necessary here to repeat. At the conclusion of the testimony the trial court instructed a verdict in favor of the defendant company, from which this appeal is prosecuted.

*229 The controlling issue in this case is whether the point where it is claimed that Thomas Street crosses the right of way of the railway company is a public crossing within the meaning of article 549c of the Revised Civil Statutes. That article provides as follows: “It shall be the duty of every railroad company in this State to place and keep that portion of its roadbed and right of way over or across which any public street of any incorporated town or village may run in proper condition for the use of the traveling public, and in case of its failure to do so for thirty days after written notice given to the section boss of the section where such work or repairs are needed ... it shall be liable to a penalty of twenty-five dollars for each and every week,” etc. A public street within the meaning of that act is one laid out and established by the municipality, or one in which the public, by some of the methods known to law, have acquired a public easement.

As supporting its contention that Thomas Street is a public street continuously throughout its entire length, and as such passes over and across the right of way of the railway company, the appellant relies upon the assumption of a dedication by the railway company. It is not claimed that the City of Atlanta has ever taken any official action by which to acquire an easement on Thomas Street as a public highway over the railway right of way; neither is it claimed that the city or any of the property owners have a prescriptive right to use the crossing over the right of way of the railway company between the two sections of Thomas Street; but it is insisted that the railway company, by plotting and mapping the land upon which that portion of the City of Atlanta is located, thereby dedicated a continuous highway known as Thomas Street, extending across the right of way at that point. The map referred to and here relied upon was made in about 1874, and was placed of record in the office of the county clerk of Cass County. The following is a substantial copy of that portion material to the decision of this case:

It will be observed that Thomas Street, as well as others running east and west as outlined upon this map, is divided by the railway right of way into two sections. The' question is, Does this map disclose a purpose on the part of the railway company to dedicate to the public use Thomas Street as a highway over and across its right of way, or does it indicate an intent to terminate Thomas Street on each side of the right of way and to reserve for railway purposes what might otherwise become a crossing between the two sections of that street ? A map or plot, such as that here in evidence, is a written instrument, and its construction is for the court unless there is an ambiguity which renders it necessary to resort to circumstances attending its making in order to arrive at the real intent of the parties. Florida East Coast By. Co. v. Worley, 38 So., 618. Aside from the plotting shown on the map there is nothing to evidence an intent on the part of the appellee to dedicate this crossing between the two sections of Thomas Street to the public as a highway.

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Bluebook (online)
120 S.W. 923, 56 Tex. Civ. App. 226, 1909 Tex. App. LEXIS 473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-atlanta-v-texas-pacific-railway-co-texapp-1909.