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Streets Should be Closed By Ordinance

Reference Number: MTAS-1471
Reviewed Date: 04/11/2023

In Wilkey v. Cincinnati, New Orleans & Texas Pacific Railway Company, 340 S.W.2d 256 (1960), the Rhea County Chancery Court permanently enjoined the railroad and the city from closing a railway crossing on a certain street, which was barricaded on both ends of the crossing. However, it is clear that the case would have gone the other way had the city closed the crossing by ordinance. The city had passed a resolution to close the crossing upon the completion by the state of an underpass several blocks away. After the underpass was completed, the contractor barricaded the crossing in accordance with its contract with the state for the construction of the underpass. The city’s resolution and the contractor’s barricade was not good enough, declared the Court.

…We cannot agree that the resolution in question obviates the need of an ordinance closing the crossing on West Second Avenue… It may well be, as both the State and the Railway company strongly insist, that it is necessary to close the crossing on West Second Avenue to promote the safety of the traveling public. If so, the responsibility for closing it remains with the local authorities [At 259].

In Cash & Carry Lumber Company, the Court distinguished Wilkey, explaining why the injunction against the closing of the railroad crossing in that case was an aberration.

Wilkey [citation omitted], cited by appellants for the proposition that no remedy at law exists is readily distinguishable and is not controlling. In the Wilkey case, the municipal government had failed to close the grade crossing by ordinance, and the Court of Appeals held that there had been no exercise of eminent domain, and that no damages would be recoverable; therefore, an injunction was the proper remedy.

In the instant case, the proper municipal authority has by ordinance abandoned the street in question. If complainant’s property has been thereby taken, the remedy is at law with an action for compensation [At 118] [Citing Sweetwater] [Emphasis added].