On Motions for Rehearing.
Appellants file separate motions and adopt each other’s motion for rehearing. It is first presumed that we have injected a new issue in the case by the following statement from our opinion:
“Which conveyance was alleged to have been made in so far as the record title or notice to the city was concerned, before the said railroad companies acquired any title to a right of way over the strip of land in controversy.”
The following is in fact appellee’s pleading in this respect:
“That the said Jno. T. Flint, trustee, executed to the city .of Marlin, a deed to the streets and alleys in Railroad addition to Marlin, which deed included a deed to Railroad street in RaU-road addition to Marlin, and which deed was accepted by said city of Marlin.”
We correct the matter because appellants complain, but it is wholly immaterial, since the case is not decided upon the question of notice as affected by the record title of the railroad company. The language used was merely our statement of what we thought ap-pellee’s pleading to be. Appellants contend that we hold the evidence sufficient, as a matter of law, to establish a dedication, and that it was such that no reasonable minds could differ as to the conclusion to be drawn.' The opinion does not so hold. The opinion merely holds that, the testimony upon which appellee relies to sustain the findings of fact by the jury is practically undisputed, and that our only duty in the ease was to determine whether or not it constituted sufficient evidence to support the jury’s findings of fact.
Also complaint is made in this connection that we have ignored appellants’ testimony, which is true to the extent that, since the jury ignored and rejected it, our province as an appellate court is to find the testimony most favorable to the verdict and judgment. It is urged that we erred in finding and using as a basis for a part of our opinion that appellant railroad company relied upon the memorandum contract of S. J. Parker, set out in our opinion, as a link in its chain of title to the strip of land in question ; now contending that it did not so rely. Undoubtedly appellants are mistaken about this, for on pages 25 and 26 of their joint brief, under the heading, “Title of Railroad Company to Right of Way through Marlin,” they list as á link in the railroad’s chain of title this agreement, stating in connection therewith, “The above instruments were first introduced in evidence by plaintiff and were also introduced in evidence by the - defendant.” Appellee’s counsel so understood that appellants were claiming this agreement as a link in the railroad’s chain of title, for he answered that contention on page 60 of his brief filed herein.- However, we did not then nor now consider it the important question to be decided in this case as to the source or sources of either the railroad company’s or appellee’s title to .the property in question, since neither is trying to divest the other of title, but simply a determination of whether or not the strip of land in controversy had been dedicated as 'a public street in the city of Marlin.
We think the facts show that appellee had sufficient title to maintain this, suit. True, the railroad company pleaded a superior title to the land, and that title having vested in it as a railroad, it could not dedicate a part of its right of way to the-public for street purposes. But we do 'not take that view of the case under the facts adduced, but hold that under the findings of: *308fact by tbe jury and tbe undisputed facts a dedication bad been made as set out in our opinion. Our view is still that, regardless from whom tbe railroad obtained title, a dedication of' tbe particular land in controversy as a public street bas been made in tbe manner set forth in our opinion. We find nothing inconsistent with tbe act of tbe joint trustee of tbe property owners and of tbe railroads in deeding tbe land in controversy to the railroads for use as a roadbed on the east side thereof, and deeding tbe balance on tbe west side of tbe track to tbe city of Marlin for use as a public street. Nor does tbe fact that be mapped and platted Railroad addition, showing the 70-foot 'strip, tbe west side of which is here in controversy, both'as tbe right of way of appellant and as a public street in the city of Marlin, evidence any lack of good faith on tbe part of tbe trustee; but in fact is consistent with, and in keeping with, bis duties as joint trustee of both the railroad and tbe property owners, first to convey a right of way to tbe railroad, and to plat and map an addition out of tbe trust properties, with necessary streets and alleys therein.
So, whether the land is a part of the Susan Grundy-11% acre tract, or a part of tbe B. .Coone 7%o acre tract, tbe trustee represented at least B. Coone and tbe railroad company, and certainly bad the right to deed a part of it to tbe railroad for right of way purposes, and q.t tbe same time deed it to tbe city of Marlin for public street purposes. He also had tbe right to make a map and plat of that addition, showing the railroad right of way on this 70-foot strip, and at tbe same time showing Railroad street to be a public street on this same strip of land, and in fact to do so would be to. carry out bis joint trust undertaking as written.
In this connection, no person, so far as we can find from tbe testimony, bas ever placed tbe field notes to tbe Susan Grundy 11% acre tract actually on tbe ground, nor did any one ever actually survey and place tbe field notes on tbe ground to the B. Coone 7%o acre tract. There is a general supp’osition by map makers that tbe Susan Grundy tract and tbe original town lot No. 27 are tbe same, but no one bas ever actually tied tbe field notes of tbe Susan Grundy tract to lot 27 and foupd them to be tbe same, so far as tbe testimony in this record shows. Tbe same situation is true as to tbe B. Coone 7%o acre tract and tbe original town lot No. 5, but no one bas ever, so far as we can ascertain from tbe testimony, tied the field notes of tbe B. Coone to lot No. 5 by actual survey. It is true that there are some discrepancies in tbe field notes in some of tbe deeds constituting appellee’s chain of title as being deraigned from Susan Grundy, but tbe same facts as to any one ever actually placing these deeds on tbe ground exist with reference thereto as exist with reference to tbe B. Coone and Susan Grundy tracts being actually surveyed on tbe ground by their field notes; and for this reason we do not fee! it our duty to set aside tbe verdict of tbe jury finding that appellee’s lots were a part of tbe Susan Grundy ll5/io acre tract, such not heing the ultimate issue to be determined in this case.
Eor tbe reasons stated, the motions for rehearing are in all things overruled.