City of Corsicana v. White , 1 Tex. L. R. 441 ( 1882 )

Delaney, J.

Opinion by One difficulty which we encounter in the decision of this case is that the record does not inform us of the no wars and duties of the officers of the citv of Corsicana; and Hir I|üjiu I n nn.il». - II *“ — **'***"—******^ ^ another is that the allegations of the petition are so vague that it is not easy to determine precisely what was the object of the suit.

Among the allegations of damage to plaintiff, by far the most important, apparently, are his arrest and imprisonment, and the extortion of money from him by the persons whom he calls the mayor and marshal of the city.

These things are alleged to have been done wantonly, wickedly, and without authority. He adds also, that they wantonly and wickedly pulled down his fence and let the cattle into his garden, and he lays his damage at a thousand dollars. In estimating this damage, it is hardly probable that he passed by the wrongs done his person, and thought only of the trespass upon his fence and garden.

At all events, this part of the petition was had upon general demurrer. For if the mayor and marshal did these things lawfully, plaintiff has suffered no wrong. If they did them without authority, they may have made themselves personally liable for the trespass, but there is no cause of action against the city. (Harrison v. Columbus, 44 Texas, 418.)

Besides the prayer for damages, there was no other than the prayer for the perpetuation of the injunction. The injunction was properly dissolved. The whole case shows that there was no ground for equitable interference. The plaintiff was entirely willing for the land to be made a public street. He simply desired pay for it. Without some amendment of the pleadings, it seems to us that the court, should, upon dissolution of the injunction, have dismissed the petition.

This is sufficient to dispose of the case, but as the court below proceeded with the trial, and several other of the rulings are assigned as error, perhaps we shall notice them. And we think the court erred in permitting plaintiff to testify to declarations made at the time when he sold the lots to Carruthers. The deed, though made to Carruthers, speaks to all men, and all persons into whose hands that property may come can enforce against the maker the covenant in the deed. He is perpetually estopped to deny it. So the declarations said to have been made by him to other parties on the same subject should have been excluded. But besides the deed to Carruthers, the testimony shows that plaintiff had sold a number of lots, which had been laid off and mapped,'and he refers to this map in his deeds. Hpon that map the land about which he is endeavoring to litigate is laid don n as one of the streets his proposed addition to the city.

How, if a suit, or suits, were brought against him by some of these purchasers to compel him to open this street, would it be possible for him to resist such a suit ? That is not an open question in our courts. (Oswald v. Grenet, 22 Texas, 94; Preston v. Navasota, 34 Texas, 684; Lamar County v. Clements, 49 Texas, 347.)

If the corporate limits of the city had been extended so as to include these lots and blocks, the city authorities would probably have the right to open the streets. We say probably, because that is a power which generally belongs to city governments. The record is silent on the subject. It does not inform us what were the powers of the city council. But the whole case proceeds upon the supposition that if the land in dispute had become a public street by dedication, the city council had the right to open it to the public.

We conclude that there is error in the record, for which the judgment should be reversed and the cause remanded.

Report of Commissioners of Appeals examined, their opinion adopted, judgment reversed and the cause remanded.

Gould, C. J,