Martinez v. City of Dallas , 102 Tex. 54 ( 1908 )

The city of Dallas brought this action of trespass to try title against P.P. Martinez and Archibald Cribbs to recover a certain strip of land in possession of defendants.

Plaintiff claims that it held a complete and unconditional easement over the said strip of land by dedication from G.W. Ervin for the purpose of a public street. Defendants claim there was no dedication, or, if so, said dedication had been revoked by said Ervin before any rights of the city had attached. A trial resulted in a verdict and judgment for the city.

The evidence shows that G.W. Ervin owned a tract of land in the city of Dallas, a part of which he caused to be platted into blocks, lots, streets and alleys, had a map or sketch thereof made, and had the same acknowledged and placed on record in Dallas County on February 19, 1884. A copy of said map here follows:

[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]

The State of Texas, County of Dallas:

Know all men by these presents that I, G.W. Ervin, constitute, make and dedicate this map or at least that portion of the same as shown within the blue lines, as the map of Ervin's Addition to the Town of Dallas, said map only covering or indicating the land now owned and formerly owned by me.

Witness my hand this February 19, A.D. 1884.

G.W. Ervin.

NOTE: This sketch embraces all of G.W. Ervin Map included in the blue lines referred to in his dedication.

The red dot on the map indicates the strip of land in dispute. Previous to the making and recording of said plat Ervin had made numerous deeds at different times, referring to "Ervin's Addition to the city of Dallas." There has never been but one addition known as "Ervin's Addition to the city of Dallas."

Afterwards, on February 29, 1884, G.W. Ervin executed to one Loeb a deed to a lot described as being in "Ervin's Addition to the city of Dallas." On March 28, 1884, Ervin executed to one Brozius a deed to a lot in the city of Dallas, as being in "Ervin's Addition to the city of Dallas." On April 16, 1884, Ervin executed a deed to one Overand, conveying land described as follows, to wit: "Situated in the city and county of Dallas, and being a part of Ervin's Addition, beginning at the S. Corner of Lot 8 in Block 299, of said Addition, on the N.E. line of a lot sold by G.W. Ervin and wife to Hibbler Sickles; Thence N. 45 E. with the S.E. line of Lot No. 8, 74 feet, to S.W. line of Cottonwood Street; Thence S. 45 E. with said line of Cottonwood Street, extending 28 feet to a stake; Thence N. 45 E. 47 feet to the intersection of Cottonwood Street and an alley; Thence S. 40 1/2 W., S.W. line of said street, 120 feet to a stake; Thence S. 23 1/2 E. 82 feet to a stake; Thence in a S.E. direction 52 feet, to a stake in branch on S. Spear's line; Thence along said branch in a westerly direction with said Spear's line 146 feet to the corner of Hibbler Sickles' lot and said Spear's line; Thence N. 42 W., with said Hibbler Sickles' line, 188 feet to the place of beginning, being the unsold balance of my addition, included between block 299, Cottonwood Street, 35 feet wide, and the Spear, Hibbler Sickles' lines, according to plat." This description includes the land in controversy.

Up to 1902, when this strip was closed by plaintiffs in error, it had been open and used by pedestrians as a common way. In 1888 a franchise was granted to a street railway company who built a track and operated cars over it for some years, but it was abandoned. The city did some work on it before the railway was built, but never prepared it for vehicles, it being an undesirable part of town for residences. Both sides were fenced and while no name appeared on the map it was known by several names, more commonly as "Burk Street." One party had built a residence facing the strip at the time the plaintiffs in error bought. In 1877, Ervin stated to one party, when asked about it, that he was going to hold it as a street for the use of the people to whom he had sold, to get to their property. In 1882, one Hayes prepared a map of this land, on which map the strip in controversy is shown to be closed. In 1887 the official map of the City of Dallas shows this strip to be closed. This strip had been assessed for taxes by the city and Martinez had paid the taxes thereon.

The first assignment of error complains of the court's action in instructing the jury that in placing the map on record G.W. Ervin dedicated the strip of land in controversy to the public as a street.

The proposition by plaintiffs in error is, in effect, that the map recorded by Ervin fails to show "clearly and unmistakably" an intention to dedicate, there being evidence, in the nature of maps and conduct of Ervin at the time, to show a different intention.

There is no controversy but what Ervin made a map of Ervin's Addition to the city of Dallas, signed and acknowledged it, and had it recorded in the county records of Dallas County. This map indicated the subdivisions of blocks, lots, streets and alleys, the streets being named, but the alleys were not named. The strip in controversy was not named on the map. It shows a strip wider than the alleys, but not quite as wide as the streets named. To one buying property in Ervin's Addition to the city of Dallas the recorded map clearly indicated that the strip was intended as a street or an open way for public use. This being the condition when Loeb and Brozius bought, we think the court properly construed the map as a dedication, and there was no error in the charge in the respect complained of. Oswald v. Grenet, 22 Tex. 99.

The other contention is that, if the record of the map constituted a dedication, such dedication had been revoked by the deed of Ervin to Overand before acceptance by the city, or by any act of Ervin that would estop him from a revocation.

There was no specific act by the city shown to indicate an acceptance before the execution of the deed by Ervin to Overand, but there was no necessity of such acceptance to make such dedication binding, where the owner of such property has conveyed to parties with reference to such dedication.

After Ervin had recorded his plat and before he sold to Overand he conveyed two separate parcels of said land to different parties, reciting therein that said parcels were in "Ervin's Addition to the city of Dallas." By these deeds this strip vested in the public and in the city the right to use it as a street, and the city had the right to take possession of and use said street whenever the progress of the town should make it necessary. The right to the use of this strip for a street having vested in the purchasers and through them in the public, it was irrevocable, and there was no necessity for a formal acceptance. City of Corsicana v. Zorn, 97 Tex. 317.

Loeb and Townsend having purchased with reference to "Ervin's Addition to the city of Dallas," all rights and appurtenances that attached to lots by reason of said addition vested in them and it is immaterial whether they bought with special view to this particular strip. So there was no error in the court charging the jury to find for plaintiff if Loeb and Townsend bought with this strip in view as a street.

In our opinion the facts warranted a peremptory instruction for plaintiff, therefore the other assignments of error not discussed are harmless.

The judgment is affirmed.