When the decision in this case was reached by the court I had grave doubts of its soundness, and so informed my Associates. A further consideration of the record on motion for rehearing has convinced me that the judgment of the trial court should not be affirmed.
This court has found, and the record amply supports the finding, that the evidence raises the issue of dedication of the property in controversy to the appellant city for street purposes. The appellant by its objection to the charge called the trial court's attention to the failure to submit this issue to the jury. This was sufficient to relieve appellant of any responsibility for the error of such omission in the charge. Gulf, C. S. F. Railway v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183.
The record affirmatively shows that the trial court did not submit this issue because in the opinion of the court it was not raised by the evidence. To affirm the judgment on *Page 553 the ground that no charge submitting this issue was offered and asked to be submitted by appellant is, it seems to me, to give effect to a rule of procedure in disregard to the substantial rights of the appellant, when it affirmatively appears from the record that, if this rule of procedure invoked by appellees was in fact violated, such violation did not injure appellees, since the court would have refused to give a charge submitting the issue.
In this state of the record I feel constrained to dissent from the order overruling the motion for rehearing.
I think the judgment should be reversed for the reason indicated, and the cause remanded.