Gulf City Street Railway & Real Estate Co. v. City of Galveston

Citations

• 69 Tex. 660
• 7 S.W. 520
• 1888 Tex. LEXIS 914

Syllabus

<p>1. City Ordinance. — The city of Galveston contracted with a street railway company, by ordinance, to use, for the purposes of a street railway, certain designated streets. A section of the ordinance was as-follows: “See. 3. The grantees named and their successors shall at all times keep the road bed of said railway in good repair and upon a level with the street, and when a street is raised or lowered the company or grantee shall raise and lower their track and road bed to conform thereto, and shall at all times pay all expenses of filling, grading, lowering. paving or otherwise changing, improving and maintaining the street between th< ir tracks; and shall also construct and keep in good repair all cross culverts wherever the same may be required by the city council under their rail track, said culverts to extend across the street from sidewalk to sidewalk, all of which work shall be done subject to the approval and under the direction of the committee on streets and alleys and city engineer, or other proper authority of said city; and whenever said grantees or their successors shall fail to construct and keep in order the culverts, tracks and road bed, as required by this ordinance, the city shall have the right to cause them to be constructed or put in proper condition and repair at the expense of said grantees or their successors, and in the event of their refusal to pay the same, the city may sue for the amount and forfeit this franchise.” Under that ordinance the city sued the railway company to recover the value of so much of improvements made by the city in filling and grading that part of the street which was occupied by the railway company’s track constructed upon it after the improvement. Held, that the city having no right to recover from the company, at the time the?street was improved by the city a part of the cost of such improvement, the subsequent use-of the street by the railway company did not confer the right.</p>