On Motion for Rehearing.
After careful reconsideration of the cause on appellants’ motion for rehearing, it is thought the original disposition of it should be adhered to; it seems to this court that the arguments and authorities adduced on the motion disclose that appellants fail to differentiate between an action for damages in such a case and one for mandatory injunction alone, as was their suit in this instance; in other words, while they offered proof tending to show that the closing of this crossing had resulted in a depreciation in the value of their nearby lands, they wholly failed to declare upon that as a ground of recovery sought, but limited their prayer to a reopening and subsequent maintenance by the county of the closing as a public way, so that a right of travel over it was alone involved.
It is now well settled in Texas that easements over such ways may be either of a public or a private character, and that these two separate and distinct rights may coexist in contemporaneous and harmonious operation, or the one may be destroyed without necessary impairment of the other — that is, that the public authority may vacate and close, or relinquish, a public easement therein, without impairing the private rights, .if any such exist. Dallas Cotton Mills v. Industrial Co. (Tex. Com. App.) 296 S. W. 503, Kahn v. City of Houston (Tex. Com. App.) 48 S.W.(2d) 595, 596, Bowers v. City of Taylor (Tex. Com. App.) 16 S.W.(2d) 520, and Id. (Com. App.) 24 S.W.(2d) 816.
But in this instance, as originally brought out, there had never been any dedication — irrevocable or otherwise — to the public of this crossing as such, nor did the parties to this cause claim under a common source proprietor who had platted and dedicated the same as a public way, with direct reference to which they had purchased; to put it differently, the appellants, in effect, admitted that their sole claim rested upon a prescriptive right to a continued use of it as a public highway that they had acquired in common with all the rest of the public; when, at the time they purchased, their property was adjacent to but not abutting on it, and they were at least charged with knowledge of the undisputed fact shown upon the records reflecting the title to the railroad right of way, including the maps and plats thereof, that there had never been any dedication or conveyance of this strip across it to the public for any purpose; since, therefore, there had never- — through dedication to the public nor by contract with others that the public authority was bound to respect — passed, into the appellants any individual or private right to keep this passageway forever open as a privilege that ran with their property, there was nothing prohibiting the county commissioners, while acting in good faith and presumptively at least for the public good, from releasing the merely public easement, that alone existed in it.
The motion will therefore be' overruled.
Overruled.