65 Tex. 502 | Tex. | 1886
From the judgment rendered below in this cause both parties gave notice of appeal. The appeal of the Galveston City B’y Co. was passed upon at the last Galveston term of this court, and, as to all the errors assigned by the appellant in that proceeding, the judgment was affirmed. Since then, the G. C. S. R’y & R. E. Co. have sued out a writ of error to revise the judgment below, in so far as it failed to perpetuate its injunction as to certain named streets in the city of Galveston. These streets were included in the original contract between the city of Galveston and the company of persons who were afterwards chartered as the Galveston City R’y company. This company had, however, up to the date of filing this suit, failed to do anything towards constructing a railway track upon any of these streets except one, and had removed the track laid upon this latter, and abandoned the use of the street altogether. Subsequently to this abandonment, and whilst this and the other streets referred to were not in use by the G. C. B’y Co. for any purpose whatever, the plaintiff in error obtained from the city of Galveston the right to construct, use, and operate a horse railway upon these streets, as well as those with reference to which the injunction was perpetuated. The plaintiff in error contends that this grant to it was a withdrawal of the privilege previously granted to its adversary, and vested in the last grantee the exclusive right to use and occupy these streets for the construction and operation of its railway.
For the purposes of that case it was not necessary to hold that the grant to the Gulf City company of the right to build a railway upon certain streets, already named in the grant made to the Galveston City Railway company, was a withdrawal, as to these streets, of the privilege previously accorded to the latter company. It was enough that the right to operate a road on these streets was given to the plaintiff in error by the city council, with the approval of the legislature. This conferred upon it, at least, the right to use these streets for railway purposes. Whether it deprived the other company of the same right was of no importance, so far as the decision of that case or the present is concerned.
Neither the charters of these companies, nor the ordinances of the city giving them the right to construct and operate railroads upon these streets, purport to convey an exclusive privilege. Hence, we have neither to pass upon the power of the city to create such a monopoly in her streets, nor to determine whether, in case she had properly exercised such a power in reference to the defendant in error, she could still, under the circumstances of the case, subsequently authorize the plaintiff in error to use any portion of the same streets for railway purposes.
The grants not having been expressly made exclusive, the question is: What was the extent of the privilege conferred by these ordinances and the acts of the legislature?
The charters and ordinances, under which each company claimed the right to build and run its road, conferred upon it the franchise of so doing upon a portion of the streets of the city, subject to certain conditions and restrictions. Some of these were named—others are implied by law. Each company obtained, in effect, the right to use so much of the streets upon which its road might be built as was necessary to lay its track, side tracks, etc., and run its cars, but not to prevent the public from making use of the same streets, either upon foot, or on horseback, or in vehicles. The inconvenience to which the public was to be subjected was only such as naturally attended
As to what effect upon this question the width of the street would have is not for us to determine in this case. If wide enough for each railway company to operate its cars without inconvenience to the other, complaint that foot passengers, horses or vehicles will not have room for the free use of the street cannot come from either of the companies. It would be a matter for the city authorities and the legislature to take into serious consideration before allowing a track to be laid upon a street already occupied in this way.
Reversed and Reformed.
[Opinion delivered February 16, 1886.]