On Petition for a Rehearing.
Coffey, J.An earnest petition, supported by an able brief, has been filed in this case, in which it is contended by the appellant-that this court erred in holding that the line •of street railway constructed by the appellee was one continuous line.
It is contended that the pleadings and finding of facts demonstrate that the appellee, at the time this suit was commenced, was engaged in the construction of two separate and distinct lines, and that the facts found by the court show that as to one line the appellant was the first to occupy the streets over which it passes.
Under this claim we have again carefully examined the pleadings and finding in the cause, and have reached the conclusion that the appellant’s contention can not be sus- *396■ tained. It is true that some isolated words and sentences in-the original complaint seem to sustain the position assumed by the appellant, but the amended complaint filed by the appellee proceeds upon the theory that the work done by the appellee was done pursuant to a determination to construct one continuous line of railway extending from the intersection of Georgia and Illinois streets to the State fair grounds, over the streets named in the complaint. From the filing of this amended complaint the cause, so far as the appellee was concerned, seems to have proceeded throughout upon this theory.
Filed March 11, 1891.With some hesitation we have reached the conclusion that the special finding sustains the theory of the appellee.
■ There seems to have been a race between the appellant and the appellee as to which should first acquire the actual possession of Georgia street. In the matter of actual construction the appellee was first to break ground, but before this occurred the appellant had surveyed the street and had driven stakes.
The survey by -the appellant, and the work done by the appellee on this street, all occurred on the same day, and, for all practical purposes, we think the parties may be regarded as having taken the actual possession of this street at the same time. If the appellee, however, long prior to this time, had commenced the construction of a line of railway extending from the intersection of Georgia and Illinois streets to the State fair grounds, which included the portion of Georgia street now in controversy, and was diligently-prosecuting the work of constructing such line át the time appellant took possession, the former had the better right, for the appellant could not appropriate any.portion of a line then in process of construction.
Petition overruled.