The Waco daily examiner. [volume] (Waco, Tex.) 187?-1888, 1885-10-14
used by the public, and recognized

Nc outh ny Rtfs
At one time there was an estab-
lished public road leading out east
from the river, as 1t seems, along
this way, but after the completion of
the bridge 1t was discontinued as
such by the county court. But the
public thereafter, as heretofore, con-
tinued to use 1t, and the owners of
the land over which IL passed, in
their conveyances recognized IL as
public way. In fact 1t seems that no
one ever questioned the right of the
public to its use until appallee con-
structed the plank fence across the
way on the west side of the river.
So far, then, as the distractions at
this point are concerned, we are of
the opinion that there were unau-
thorized, and that the city council
rightfully ordered their removal.
Appellee h0wev r, claims that its
asserted right to the exclusive use of
this reserve was confirmed by the
legislature in the act constituting
the last charter of the city, passed in
1871. The two sections relied upon
to support this proposition are these:
"S. To establish, erect and keep in
repair bridges, culverts and sewers,
and regulate the use of the same; pro.
vidcd, that nothing herein shall be so
construed as to give any power over
the Waco suspension bridge across
the Brazos river, or to interfere with
the chartered rights OF the Waco
Bridge company in any respect what
ever; in all other respects, however,
leaving the Jurisdiction the same over
the said bridgeway as in other por-
lions of the corporation
"37. To exercise complete and per.
feet control over the commons and
all the property belonging to the city,
real or personal, whether lying with
in or beyond the limits of the corpo-
ration created by this act, and the
same to lease, sell, transfer and dis
pose of, either absolutely or within
limitation, subject only to the condi-
tions, If any, on which the property
is held"
The proviso in the first of these
sections was intended as a limitation
upon the powers conferred upon the
council upon the first part of the Sec
ton. IL was intended thereby
to protect the bridge and chartered
rights of the company from the
powers therein conferred upon the
municipal government, No addi-
tional chartered rights were thereby
conferred upon the bridge company.
such was not the intention Of the
proviso, even had IL been within the
constitutional power OF the legisla-
ture to have done this in an act to In
corporate the city. Its sole object
was to protect the existing rights OF
appellee con terred by its own charter
AS to the other section, IL, as seems
II Is relied upon as confirming n grant
by the city to appellee of right to
use the entire reserve" or any con-
siderable portion, SO as to exclude the
public from the free enjoyment OF
the same, it has heretofore been seen
by the city council Besides this, the
exercise of control over the reserve
conferred by that section, is subject
to the limitations aud conditions
upon which the city held the properly
1t will not be seriously contended
that, under the terms of the convey.
ance from De Cordova and
Ware to the commissioners
the city council had any
authority to sell, lease or otherwise
dispose of this reserve; for the Ian.
guage of the deed is, "the followin ing
described property 10 be used safely
for the purposes designated, but to
be held for the use and benefit of the
town of Waco, viz: Ten feet around
the heads of the large springs known
as the Waco springs; the public
square; the reserve In front of the
town facing the Brazos river; the
streets and lanes or alleys runniu Q
through the town and farming lots y
In a subsequent portion of this deed
other property Is conveyed to the
commissioners, with express power
conferred upon the city TO sell aud
convey the same. But we search the
deed In vain for the remotest intima-
ton that IL was intended to confer
any such power upon the city with
respect to the public square, streets,
lanes or alleys, the spring or the re-
serve on the river front. These in
fact all occupy the same status, for by
the terms of the deed II seems clear
that they were all dedicated by the
grantors to the public use.
Hence, the legislature did
not undertake or intend to
confer any power from the city coun-
Gil, with respect to this reserve, In
consistent with the intention of the
grantors, manifested by their deed 70
the commissioners. How far this
reserve might be subjected to ease
ments by the exercise of the right of
eminent domain need not be here
considered, as no such right Ia as
serted. In this connection Il is sufii-
cient TO say that no additional right,
not heretofore lawfully exercised
under its own charter, was conferred
upon appellee by these sections of
the city charter.
Under the existing charter, Ii would
seem that the city council would
have the power TO open and extend
such streets TO the river as might be
deemed necessary or convenient TO
the Inhabitants or the general public.
IL 10 also claimed that on
appellee's charter confors upon
u exclusive bridge privileges
Tor distance of five miles up and
down the river, and as the charter
also prohibits the establishment of
any other bridge or any ferry within
that distance, IL follows that all exist-
Ing public fOrds within that distance
were thereby prohibited and subject
10 be closed by appellee. 80
Su h exclusive privileges as arc
conferred by appellee's charter APP
proach very nearly the extreme limit
OF legislative power, and such legis-
lation Is so far antagonIstic TO The
spirit Of free and enlightened repub-
lican government that II Is not en-
titled TO any liberRlity of c0nstruc-