On Motion for Rehearing.
Among other grounds urged by appellants for rehearing is this: “VI. This court erred in holding, that the strip 60 by 720 feet was macadamized with rock and gravel prior to the opening of Junius Heights Addition, and has been continuously used by the public as a street since 1909, without protest or objection from the appellants, because there is no evidence in this record to sustain such finding and holding of this court.”
The statement of facts discloses that Ju-nius Heights addition was opened prior to 1909, and on November 24th of that year, the then owner of the fee executed and had recorded in the deed records of Dallas county a formal dedication, to the public forever, all streets and alleys of said addition as per plat. One of the streets shown on the plat is Tremont, which includes the strip 60' by 720 feet in controversy.
*936Without reciting other evidence, we quote from apisellants’ own witness, Metcalf, who testified: “The street (referring to Tremont) was' macadamized when the addition was put on; macadamized with white rock and gravel u£ to the gutters. That was for the full 720 feet and further; I think it extended all the way, as I remember, to the end of that street. 720 feet — that was done by the people who put on the addition.”
At another place in his testimony, this witness said: “This street continued as a macadamized street until the city paved it with the present pavement. In a way, it was generally passable and was -used by vehicles and people from the time it was paved to the present time; used by the public generally, just as any other street was used. It was open for the last fifteen years; the street has been open continuously. We have allowed it to stay open and the public has used it during that time. They never have asked our permission to use it, and we have never said anything to them about it.”
He also said: “With reference to my testimony awhile ago, that the paving by the owners and that the street has been traveled by the public since that time, and as to whether I was referring to the pavement on it now or the old pavement, I spoke of all of it. I suppose it had never been closed; the street has never been closed to anyone; thei’e has been no protest to keep anyone coming over the street.”
Thus it is shown that this finding of the court is abundantly supported by the evidence.
Appellants also challenge the correctness of another conclusion of this court, as follows: “VII. This court further erred in ■holding, that Tremont Street was paved, including the strip in question, with public funds, because there is no evidence that sustains such finding and this finding is directly contrary to the facts testified to and directly contrary to the evidence in the record.”
This assignment alleges, by implication at least, that we found the street was paved altogether with public funds. We made no such finding. We did find that: “Prior to 1924, plaintiffs (appellants) and other abutting property owners, asked the city by petition to have Tremont Street paved, including the strip in question. The city granted the petition, advertised for paving bids, let the contract, enacted all necessary ordinances, fixing liens, etc. on abutting property, and paid from public funds all costs of the proceedings and for paving the intersections.”
At another place in the opinion, we said: “We therefore hold that, by acquiescence, by unequivocal acts inducing the city-to pave in part at public expense, plaintiffs dedicated whatever interest they owned in the land to the public for use as a street, and are now estopped to gain-say that fact.”
Without referring to any other evidence, this finding is abundantly sustained by the agreement of parties, as follows: “It is agreed that the City of Dallas, at the special instance and petition of the property owners abutting on the strip of land or street in controversy, instituted paving proceedings in-1924, that the City of Dallas advertised for bids for the paving and that it duly received bids and awarded the contract to Smith Bros., and that Smith Bros;, in pursuance of that contract paved the street and that the City of Dallas duly passed an ordinance levying assessments against the respective property owners for their pro-rata share of the cost of the improvement and fixed liens in favor of .Smith Bros., against the respective parties, that the City of Dallas paid for' the paving of the street intersections.”
We have considered all grounds urged by appellants for rehearing and finding no reason for changing our decision, the motion is overruled.
Overruled.