Texas v. Texarkana MacH. Shops , 1 S.W.2d 928 ( 1928 )

The street in controversy had origin and was created by prescription, as determined by the jury. The appellee, as proven, has rights of an abutting proprietor. The appellant, as proven, is the owner of the fee of the land covered by the street next to its lot, and has placed thereon one or more structures. There has not been cessation of the use of the street by the general public or the abutting proprietors. The public and the abutters continued to use the street to the time of the erection of the obstruction by defendants. The appellee seeks by injunction to have the obstructions removed, as a nuisance of material and special injury to it in the free use of the street. The appellant is asserting as a defense the right to take exclusive possession and use of the land covered by the street in the way of legality, namely, that it is the owner of the fee, and that there has been termination of the right of easement in the street as such by the city of Texarkana, acting within its charter power and in the proper exercise thereof. The rights which an abutter has in the streets, whether established by dedication or prescription, as a means of enjoying the free and convenient use of his abutting property, are different from the right which the general public possesses, and they are also distinct and different from the rights of the owner of the fee.

All the courts and text-book writers agree that the right of easement in the street which an abutter has constitutes property, entitling him to maintain an action in redress of special injury to him of the enjoyment thereof. Jones on Easements, § 547. The owner of the fee in the land covered by the street, with the accompanying burden of abutting property, may assert full enjoyment thereof as private property only when the street ceases to be a street and the rights of the abutter and of the public therein are divested. Jones on Easements, § 552. These propositions are conceded. The single point, therefore, is that of whether a legal vacation of the street has been shown. In this respect all that was shown was that the city council passed an ordinance. There is no pretense in the record that the street had ceased to be continually used by the general public or by abutters. The street was a way of necessity to the abutters and the public in that locality, in which industrial plants are located. Looking to the ordinance, it affirmatively appears from its face that the inducing cause and purpose of the city council's action was to release "any and all right, title and interest, if any it has," of the city of Texarkana in the "land" covered by the street to a private individual, who was the owner of the fee. The further provision of vacating and closing the street was evidently intended merely to immediately accomplish the purpose of the transfer, to revert the land to primary conditions of ownership. So emphatically was this the case that a deed "to the land" was ordered to be executed and delivered.

There arises first the authority of the municipal corporation, and next the validity of the ordinance. By its charter the city of Texarkana is given exclusive control of the streets within its limits, with defined powers in relation thereto. It is given the power to "widen, extend, grade, narrow, * * * pave, * * * maintain and improve" all streets. It is further given the power over the streets, namely, "to vacate and [to] close them." Clearly this general authority was vested by the law in the city, as a municipal corporation, purely as the representative of the public and for the public benefit. It may not be questioned that a city, as a public corporation, may be made a trustee for the general public, to whom all streets belong, with legal capacity to execute the trust. The Legislature had the power to so provide, as the supreme trustee for the general public. In this aspect there is no difficulty in understanding, what was intended to be comprehended in the authority conferred on the municipal corporation. It means that the municipal corporation may provide a suitable system of streets, and may lawfully apply the taxes raised, according as the different stages are enumerated, namely, "to lay out, establish, open, * * * widen, extend, grade, * * * pave," etc.

The further authority "to vacate and (to) close" streets, as a necessary incident of control and maintenance thereof, was intended to empower the city only to relieve the public from the charge of maintaining a street in case it is no longer used by the public as a street, or is no longer useful and convenient to the public in general. The word "close" is used in the sense of termination of maintenance, and not in the sense of preventing ingress and egress by obstructions. In nowise is such authority intended to comprehend proprietary rights in the land, or exercise of proprietary rights in respect thereto. Streets are not owned by the public, but their uses are public. The state or the city has no proprietary rights in the land covered by streets, created by dedication or prescription. Galveston City Surf Bathing Co. v. Heidenheimer, 63 Tex. 559. The city, as a municipal corporation, holds merely the right to the easement in such streets in trust for the public and in respect to the public interests. Therefore the authority of the city to vacate a street may be regarded as attaching at all only in case it is for the benefit of the public that such action should be taken. The benefit may be either in relieving the public from the charge of maintaining a street that is no longer used by the public, or is no longer useful or convenient to the public, or by laying out a new street in its place which will be more useful and convenient to the public in general. A street may not in any event be vacated or discontinued for the purpose of devoting it to purely private and inconsistent uses, as without the authority of the municipal corporation, as a trustee, to do. Elliott on Roads and Streets (2d Ed.) § 875; Smith v. McDowell, 148 Ill. 51,35 N.E. 141, 22 L.R.A. 393. The diversion of public property to private use is generally considered an abuse of power by those who are custodians of the rights of the public, rendering the act void. Van Witsen v. Gutman, 79 Md. 405, 29 A. 608, 24 L.R.A. 403; Horton v. Williams,99 Mich. 423, 58 N.W. 369. Therefore neither the ordinance nor the conveyance from the city to appellant could legally be regarded as a license to appellant, as wholly without the authority of the city to do, to permanently occupy and obstruct the use of that portion of the street, in private injury to abutters.

Assume, however, in another aspect of the ordinance, that the city council had the purpose and intention by the ordinance to vacate the street at all events. Section 2 seems to indicate that the city council regarded it as uncertain that the street was longer used by the public. Even so, upon passing the ordinance declaring it vacated or withdrawn from further public charge, the street would merely have reverted to the owner of the fee with the accompanying burden of abutting property. But the validity of the ordinance is affected by the exercise of the authority of the city council. The rights of abutting owners in an existing and used street may not at all events be taken away by the mere passage of an ordinance declaring it vacated. The constitutional objection would be present that the abutter could not be deprived of use of, and access to, the street without a hearing upon the subject, and without compensating him therefor, as in the nature of condemnation. The power to discontinue at all events an existing and used street, in its very nature, is not absolute and without limitations. Upon sound principle, every restraint placed by a public trustee or agent upon the common use of streets must be justifiable upon established principles of government. Otherwise it would be equivalent to the recognition of a despotic power over every act which may be done in respect to the streets, without regard even to the requirement of due process of law. Counties are not allowed by law to discontinue an original highway or road without notice and hearing even to the general public. Article 6705, R.S. 1925; Haverbekken v. Hale, 109 Tex. 106, 204 S.W. 1162. Certainly on no other grounds could the municipal corporation deprive an abutter of his property rights in an existing and used street. Such ordinance as to him would be ineffectual and void. Elliott on Roads and Streets (2d Ed.) § 871; Jones on Easements, § 549; Black on Const. Law (3d Ed.) p. 484; Lincoln v. Inhabitants of Warren,150 Mass. 309, 23 N.E. 45; Pearsall v. Board of Supervisors, 74 Mich. 558,42 N.W. 77, 4 L.R.A. 193; Mitchell v. St. Louis, etc., R. Co., 116 Mo. App. 81, 92 S.W. 111; section 17, art. 1, Constitution of Texas; City of Texarkana v. Lawson (Tex.Civ.App.)168 S.W. 867.

Therefore the appellant has not shown the legal right to obstruct the street, and the judgment of the district court is in all things affirmed.