Town of Palm Valley v. Johnson , 17 S.W.3d 281 ( 2000 )

OPINION

Justice YÁÑEZ

delivered the opinion of the Court,

in which Justices DORSEY, HINOJOSA, and McCRAW¹ joined.

Appellant, the Town of Palm Valley (“Palm Valley”), appeals a judgment granting declaratory and injunctive relief in favor of appellees, Paul Johnson and The Johnson Company d/b/a J Properties (“Johnson”). Following a trial, the court granted judgment permanently enjoining Palm Valley from closing, obstructing, or otherwise denying public access to Lemon Drive, a public street located within the town’s boundaries. By fourteen issues, Palm Valley contends the trial court erred in: (1) granting the injunction because Johnson failed to establish he had suffered irreparable injury; (2) concluding that Johnson’s property abuts Lemon Drive; and (3) concluding that the entire length of Lemon Drive as originally platted was accepted as a public street, that no portion of it was ever abandoned, and that there was no failure of any conditional limitation in the original dedication. We affirm.

A subdivision plat for Palm Valley Estates Unit number nine, a residential subdivision developed as one of a series of units in a country club complex near Har-lingen, was approved by Cameron County and filed for record on August 14, 1972. The plat shows residential lots and streets, including Lemon. Drive, which extends southward approximately three hundred feet from Palm Valley Drive West to the southern boundary of the subdivision. The plat states that the developer “hereby dedicated] the Roads, Streets, and drives as shown and delineated hereon to the public so long as the same shall be used and maintained as such.” The plat shows five lots with frontage along Lemon Drive, which “dead-ends” into the southern boundary line of the property. Lemon Drive was subsequently paved, except for a four-foot section at its southern end.

Palm Valley was incorporated on September 11, 1980. Unit number nine was included in the incorporation, which made the southern boundary of the subdivision coterminous with the southern boundary of the town.

Pursuant to a request from residents along Lemon Drive, Palm Valley’s Board of Aldermen voted on June 16, 1987 to close Lemon Drive at its southern end and erect a barricade. Apparently, however, no barricade was erected at that time.

On June 25, 1990, Paul Johnson purchased a twenty-acre tract located immediately south of and contiguous to Palm Valley’s southern boundary. Several weeks later, he conveyed the property to the Johnson Company d/b/a J Properties and hired an engineering firm to design a residential subdivision on the property. The firm designed a proposed subdivision, Palm Valley South, which showed a street called Lemon Drive connecting to the existing Lemon Drive. Johnson requested access from Palm Valley to the existing Lemon Drive for his proposed subdivision. In response, the Board of Aldermen voted on October 9,1990 to erect a barricade and fence at the southern end of Lemon Drive. Approximately a month later, Palm Valley completed construction of a fence along its southern boundary and across the southern end of Lemon Drive.

In a letter dated October 14, 1991, the City of Harlingen advised Palm Valley that Johnson’s proposed subdivision plat had been approved, subject to a requirement that Lemon Drive be continued into the subdivision from the southern boundary of Unit number nine.² The letter also noted that although the City of Harlingen was aware of Palm Valley’s claim that it had closed Lemon Drive, it “ha[d] not received any notice that the Town of Palm Valley’s Board of Aldermen has taken proper legal action to close, abandon, and vacate Lemon Drive as a public thoroughfare.” On November 19, 1991, the Board of Aider-men adopted an ordinance purportedly “closing” Lemon Drive “one or two feet inside the southern boundary” and declaring it to be a cul-de-sac. Shortly thereafter, appellees filed suit seeking injunctive relief.

Almost two years later, on November 5, 1993, Palm Valley re-platted the four-foot unpaved strip at the south end of Lemon Drive, declaring that the re-platted portion was “no longer a part of the platted road and street right-of-way,” and had “devolved in accordance with the dedication provisions of the original plat of said Unit No. 9.” The certificate on the re-plat acknowledged that “said replatted portion was, prior to this replat, a portion of previously platted road and street right-of-way.”

Appellees’ suit for declaratory and in-junctive relief was tried to the court on May 11, 1995. Following a lengthy recess,³ the trial court issued findings of fact and conclusions of law and granted a declaratory judgment and permanent injunction in favor of appellees. The relevant findings and conclusions were:

* As originally platted, Lemon Drive extends to and touches the southern boundary line of Palm Valley Estates Unit No. 9, which became the southern city limit of the Town of Palm Valley.

* Although not all the platted right of way was paved, Lemon Drive was opened and maintained as a public street from its original dedication through the date of this suit.

* The public right of way known as Lemon Drive extends to and touches the southernmost boundary of Palm Valley Estates Unit No. 9 and the Town of Palm Valley city limits.

* The Johnson property abuts the public street known as Lemon Drive within the Town of Palm Valley, Texas.

* Neither Johnson nor any predecessor or successor in interest to the Johnson property consented to the closure of said street.

* On May 8, 1991, the City of Harlingen approved the Johnson’s subdivision, known as Palm Valley South Subdivision, with the condition that Lemon Drive be continued as a through street from Palm Valley Estates Unit No. 9 to Palm Valley South Subdivision.

* The action of the Town of Palm Valley has denied the owners of the Johnson property access to the public street and right of way known as Lemon Drive.

* The Town of Palm Valley has never initiated or completed a condemnation suit against the owners of the Johnson property regarding Lemon Drive.

* For purposes of the application of Tex.Rev.Civ. Stat. Ann. ÁRT. 1016 [repealed, now Tex. Transp. Code. Ann. § 311.008 (Vernon 1999) ], Palm Valley South Subdivision abuts Lemon Drive in the Town of Palm Valley, Texas.

* [That statute] requires consent of all owners of real property abutting a public street to consent to the closing of such a street.

* Any and all ordinances, resolutions, or other acts taken by the Board of Aider-man [sic] of the Town of Palm Valley which purports to close, vacate, or abandon Lemon Drive are null and void because such acts were taken without the consent of the Plaintiffs [sic] in this suit as owners of property abutting said public street.

* The entire length of Lemon Drive as originally platted in Palm Valley Estates Unit No. 9 was accepted, opened, and maintained as a public street.

* No portion of Lemon Drive in the Town of Palm Valley has ever been abandoned.

* There was no failure of any conditional limitation in the original dedication of Lemon Drive in Palm Valley Estates, Unit No. 9, and, even if there was, such failure has been waived or such conditional limitation was unenforceable by this defendant.

* Plaintiffs [sic] are entitled to a permanent injunction enjoining the Town of Palm Valley from erecting or creating any barrier, or taking any other action to vacate, abandon, or close Lemon Drive in the Town of Palm Valley, Texas....

In its eighth, eleventh, and fourteenth issues, Palm Valley contends Johnson was not entitled to an injunction because he failed to establish he had suffered or would suffer irreparable injury as a result of being denied access to Lemon Drive. Johnson contends no showing of irreparable injury was required because: (1) section 65.011 of the civil practices and remedies code, which lists various grounds for obtaining injunctive relief, does not require irreparable injury as an element of each situation in which relief may be granted, see Tex. Civ. Prac. & Rem.Code Ann. § 65.011 (Vernon 1997); and (2) section 65.015 of the civil practices and remedies code, which requires no showing of irreparable injury, specifically governs situations where an injunction is sought to prevent the closing of a street. See Tex. Civ. Prac. & Rem.Code Ann. § 65.015 (Vernon 1997). Section 65.015 provides:

An injunction may not be granted to stay or prevent the governing body of an incorporated city from vacating, abandoning, or closing a street or alley except on the suit of a person:

(1) who is the owner or lessee of real property abutting the part of the street or alley vacated, abandoned, or closed; and

(2) whose damages have neither been ascertained and paid in a condemnation suit by the city nor released.

Id.

The grant or. refusal of a permanent injunction is within the trial court’s sound discretion and, on appeal, review of the trial court’s action is limited to the question of whether the action constituted a clear abuse of discretion. Long Island Owner’s Ass’n, Inc. v. Davidson, 965 S.W.2d 674, 689 (Tex.App. — Corpus Christi 1998, pet. denied) (citing State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex.1979)).

Section 65.011 describes five separate and independent bases for granting injunc-tive relief. See Tex. Civ. PRac. & Rem.Code Ann. § 65.011 (Vernon 1997). Paragraph one of that section provides that an injunction may be granted if “the applicant is entitled to the relief demanded and all or part of the relief requires the restraint of some act prejudicial to the applicant^]” Tex. Civ. PRac. & Rem.Code Ann. § 65.011(1) (Vernon 1997). In Hale County v. Davis, 572 S.W.2d 63, 66 (Tex.Civ.App. — Amarillo 1978, writ ref d n.r.e.), the court relied on former Texas Revised Civil Statute Annotated article 4642, section 1, repealed, now Tex. Civ. PRac. & Rem.Code Ann. § 65.011(1) (Vernon 1997), in upholding an injunction enjoining non-property owners from using a portion of a county road within property owners’ boundaries to install pipelines for the nonowners’ private use. The court held the right to injunctive relief was authorized by the statute and that the equitable principles — that the property owners had an adequate remedy at law, failed to show irreparable harm, and that the balance of equities preponderated in the nonowners’ favor — were inapplicable. See Hale County, 572 S.W.2d at 66.

Johnson’s argument that no showing of irreparable injury is required is also supported by the principle that equitable requirements for obtaining an injunction are inapplicable when a right to injunctive relief is granted by statute or when an injunction is granted to prevent the violation of a statute. Texas Pet Foods, Inc., 591 S.W.2d at 805; Gulf Holding Corp. v. Brazoria County, 497 S.W.2d 614, 619 (Tex.Civ.App. — Houston [14th Dist.] 1973⅛ writ ref d n.r.e.) (“[w]hen it is determined that a statute is being violated, it is the province and duty of the district court to restrain it, and the doctrine of balancing of equities does not apply”).

In the present case, the trial court concluded that former Texas Revised Civil Statute Annotated article 1016, repealed, now Tex. TRAnsp. Code Ann. § 311.008 (Vernon 1999), requires all abutting property owners to consent to the closing of a public street. It further concluded that because any action by Palm Valley purportedly vacating or closing Lemon Drive was taken without obtaining Johnson’s consent, any such action is void. Section 311.008 of the transportation code provides:

The governing body of a general-law municipality by ordinance may vacate, abandon, or close a street or alley of the municipality if a petition signed by all the owners of real property abutting the street or alley is submitted to the governing body.

Tex. TRAnsp. Code. Ann. § 311.008 (Vernon 1999) (emphasis supplied).

Although the issue of whether land that touches the end of a public road “abuts” the road has not been specifically addressed by Texas courts, this Court has previously held “abut” to mean “to touch along a border or with a projecting part, (land abuts on the road); to terminate at a point of contact; to border on; touch.” J. U. Clements v. City of Corpus Christi, 471 S.W.2d 83, 86 (Tex.Civ.App. — Corpus Christi 1971, writ ref'd n.r.e.) (quoting Webster’s Seventh New Collegiate Dictionary).

Here, the trial court found, as a conclusion of law, that “[f]or purposes of the application of Tex.Rev.Civ. Stat. Ann. Art. 1016 [repealed, now Tex. Tiíansp. Code. Ann. § 311.008 (Vernon 1999) ], Palm Valley South Subdivision abuts Lemon Drive in the Town of Palm Valley, Texas.” The evidence presented at trial supports the trial court’s conclusion. We hold Johnson’s property abuts Lemon Drive and that he is entitled to all rights of an abutting property owner, including access to Lemon Drive. We overrule appellant’s first, second, third, seventh, and thirteenth issues.

We also conclude that Palm Valley’s action purportedly closing or vacating a portion of Lemon Drive was taken without Johnson’s consent and is therefore void. We hold' section 311.008 of the transportation code, together with section 65.015 of the civil practices and remedies code, provides sufficient statutory authority for the injunctive relief granted by the trial court, and accordingly, overrule appellant’s eighth, eleventh, and fourteenth issues.

By its fourth, fifth, sixth, ninth, and tenth issues, Palm Valley argues that the four-foot unpaved section at the southern end of Lemon Drive: (1) was never accepted (issues four, nine, and ten); (2) reverted to private ownership because of a conditional limitation in the original dedication (issue five); or (3) was abandoned (issue six). In response, Johnson argues that all of Lemon Drive was accepted as a public roadway, that there was no reversion of any portion of it due to a failure of a conditional limitation in the original dedication, and that no portion of the roadway was abandoned.

Palm Valley contends there is no evidence that either Cameron County or Palm Valley ever accepted Lemon Drive. Palm Valley’s position is based on the argument that because the four-foot section of Lemon Drive was never paved, it was never accepted as a public roadway. Palm Valley cites no authority in support of this proposition, and we have found, none. The general rule governing partial acceptance of a dedicated street in such circumstances is as follows:

... the opening up of a dedicated street for the greater part of its length by a municipality constitutes an acceptance of the whole of the street as dedicated, in the absence of anything to show a contrary intent. The fact that a portion of the street is not capable of being traveled does not militate against the idea of acceptance.

26 C.J.S. Dedication § 41 (1956) (footnotes omitted); see also Joseph v. City of Austin, 101 S.W.2d 381, 386 (Tex.Civ. App. — Austin 1936, writ ref d) (where lots were purchased in reference to plat showing sixty-foot street, entire sixty-foot width vested in public and no showing of formal acceptance was required, even though only thirty-foot wide section of street was paved). We hold the entire length of Lemon Drive as originally platted was accepted as a public street and overrule appellant’s fourth, ninth, and tenth issues.

Palm Valley also argues that the original dedication of the four-foot unpaved section “terminated” because the dedication was limited by the condition that the streets “be used and maintained as such.” Again, Palm Valley cites us to no case law in support of its position and we have found none. “ ‘Dedication’ is the act of appropriating private land to the public for any general or public use. Once dedicated, the owner of the land reserves no rights that are incompatible with the full enjoyment of the public.” Scott v. Cannon, 959 S.W.2d 712, 718 (Tex.App.— Austin 1998, pet. denied.) Where a condition in a dedication is void as against public policy or as inconsistent with the grant, the dedication is effective but the condition is inoperative. City of Fort Worth v. Ryan Properties, Inc., 284 S.W.2d 211, 214 (Tex.Civ.App. — Fort Worth 1955, no writ). Whether a dedicated use is restricted or unrestricted is determined by the intention of the dedicator at the time the dedication was made. Pak-Mor Manufacturing Company v. Brown, 364 S.W.2d 89, 93 (Tex.Civ.App. — San Antonio 1962, writ refd n.r.e). In the present case, we conclude it is unlikely that the original dedicator intended to create a dedication in which a four-foot strip of land would revert. Even if such an intent did exist, any such conditional limitation on the dedication is inconsistent with the grant and is therefore inoperative. We hold the trial court did not abuse its discretion in concluding that there was no failure of any conditional limitation in the original dedication. We overrule appellant’s fifth issue.

By its sixth issue, Palm Valley argues that the four-foot unpaved section of Lemon Drive was abandoned. In support, it points to evidence that the four-foot strip could not be used as part of the street because it was obstructed by brush, grass, and palm trimmings. “In order for a public road to be considered abandoned, its use for the purpose for which it was dedicated must be either impossible or so improbable as to be practically impossible.” Spinuzzi v. Town of Corinth, 665 S.W.2d 530, 533-34 (Tex.App.—Fort Worth 1983, no writ). Mere delay in the exercise of the use for which property was dedicated does not amount to an abandonment of the use. City of Houston v. Lawyers Trust Co., 348 S.W.2d 26, 31 (Tex.Civ.App.—Waco 1961), rev’d on other grounds, 359 S.W.2d 887 (Tex.1962). Moreover, the use and improvement of only a part of the dedicated property does not constitute an abandonment of the balance of the property. Id. We hold the trial court did not err in concluding that no portion of Lemon Drive has ever been abandoned. We overrule appellant’s sixth issue.

By its twelfth issue, Palm Valley complains that Johnson’s petition for in-junctive relief failed to contain a verification as required by rule 682. See Tex.R. Civ. P. 682. A verified petition for injunc-tive relief is not required, however, when a full evidentiary hearing on evidence independent of the petition has been held. Georgiades v. Di Ferrante, 871 S.W.2d 878, 882 (Tex.App.—Houston [14 th Dist.] 1994, writ denied). We overrule appellant’s twelfth issue.

The dissent contends Johnson is not entitled to injunctive relief because there is no evidence to support a finding of irreparable injury, and that such a finding is required by section 65.011 of the civil practices and remedies code. According to the dissent, an applicant seeking an injunction preventing street closure must not only state a valid cause of action and show imminent harm and irreparable injury, but in addition, must meet the requirements imposed by section 65.015.

The dissent argues that Johnson’s reliance on Dykes v. City of Houston, 406 S.W.2d 176 (Tex.1966), to show irreparable injury was not required, is misplaced. In Dykes, the supreme court upheld an injunction prohibiting the City of Houston from erecting a barricade on a dedicated (but unopened) street on the grounds that the plaintiffs, as purchasers of lots in the subdivision with reference to a map showing a dedicated street, acquired an easement in the land designated as a street. See Dykes, 406 S.W.2d at 181-83. The court’s opinion contains no discussion or reference to a requirement to show irreparable injury. The dissent distinguishes Dykes by noting that in the present case, Johnson’s property lies outside the boundaries of the subdivision (and the town). The dissent reasons that Johnson, unlike the purchasers in Dykes, acquired no easement over Lemon Drive. The dissent cites no authority, however, for its conclusion that only purchasers of property within Palm Valley Estates Unit number nine, who purchased property with reference to the plat showing Lemon Drive, acquired a private easement over the area designated as Lemon Drive. The evidence shows Johnson purchased his property “with reference to” the recorded subdivision plat showing Lemon Drive as a public street.

Although our holding that Johnson was not required to show irreparable injury is not based on the holding in Dykes, we disagree with the dissent’s interpretation of that opinion. A private easement in a street may be acquired either as a purchaser in a subdivision with reference to a recorded plat or map, like the plaintiffs in Dykes, see, e.g., Dallas Cotton Mills v. Industrial Co., 296 S.W. 503, 504 (Tex. Comm’n App.1927, judgm’t adopted), or as an abutting property owner. See Jacobs v. City of Denison, 251 S.W.2d 804, 807 (Tex.Civ.App. — Dallas 1952, no writ) (no private easement acquired where plaintiff was neither abutting property owner nor purchaser with reference to recorded map or plat); Texas Co. v. Texarkana Mach. Shops, 1 S.W.2d 928, 930 (Tex.Civ.App.-Texarkana 1928, no writ) (abutting property owner has right of easement in street). In Texarkana Machine Shops, the court upheld an injunction in favor of an abutting property owner compelling the removal of certain obstructions placed on a public street. Id. at 932. The court found that the abutting owner’s rights were not extinguished by the city’s passage of an ordinance declaring the street vacated. Id. at 931.

We AFFIRM the judgment of the trial court.

Dissenting Opinion by Chief Justice SEERDEN, joined by Justices CHAVEZ and RODRIGUEZ.

2 . The letter, signed by the City of Harlin-gen's Director of Planning and Zoning, noted that Johnson’s proposed subdivision was located within Harlingen's extra-territorial jurisdiction and was therefore governed by the requirements of the City’s subdivision ordinance, which required continuation of existing streets into adjoining new subdivisions where necessary. In this case, the city’s Planning and Zoning Commission had determined that the extension of Lemon Drive was required to promote orderly development, facilitate traffic flow, and provide improved access for fire and emergency medical vehicles.

3 . The trial was recessed on May 12, 1995, and reconvened on September 22, 1997.