Untitled Texas Attorney General Opinion ( 1952 )

August 25; 1952
Hon. Cullen B. Vance Opinion No. V-1510
County Attorney
Jackson County Re: Authority of Jackson
Edna, Texas County to sell the pre-
sent courthouse property
under the suljmltted
Dear Sir: facts.
Your request for our opinion reads in part as
follows:
"I am enclosing copy of a Deed dated
December 19, 1904, from the New York, Texas
and Mexican Railway Company to Jackson
County.conveying a plot of ground 240 feet
by 400 feet for Cowthouse~purposee. Jack-
son.County erected a Courthouse building on
this plot of ground In 1905 at a cost ln~ex-
cess of $2O,,OOOiO,O
aiidconstructed of brick
within the requirements of this Deed. This
bui1ding.U approximately 52-l/6 feetby 85-
5/6 feet, outside dimensions.
"According to Affidavits that I have
procured from several individuals who have'
been acquainted with this property for a
great many years, the plot of ground on which
the Courthouse ,butldlng,issituated has 'been
used for the following other purposes:,
"A public fountain is maintained In
front of the Courthouse and rest rooms open
24 hours a day are provided in a separqte
building for the~uae of,the public. The plot
of ground has been landscaped, a rose garden
and other shrubbery are maintained thereon,
and some 30 years ago approximately 25 or 30
Hackberry and Pecan trees were planted that
now provide considerable shade. Benches have
been maintained on this ground for the use
by members of the public and the ground has
been used for holding political rallie$,
church sales and bazaars, preaching services,
Hon. Cullen B. Vance, page 2 (V-1510)
club carnivals, public fairs and exhibitions,
band concerts, chautauquas, public barbecues,
and during more recent years athletic and pep
rallles and an annual firemen's public Chrlst-
mas tree have been held. There are two monu-
ments on this gro,und,'
one erected to the memory
of~Irvln ,MooreLaughter, who was killed while
in naval-service In 1916, the monument having
been erected in about 1917, and the other a
centennial marker or monument erected by the
State of Texas in 1936. The entire plot of
ground Is surrounded by public streets. Since
the Courthouse was erected thereon, the plot
of ground has been used by various organiza-
tions and members of the public for public
gatherings and as a public meeting place and
has been the only place provided in the City
of Edna during all of these years as a pub-
lic meeting place for all members of the
public without regard to race, creed or reli-
gious affiliation. According to these affi-
davits, this plot of ground has been referred
to and mentioned as "The Courthouse Lawn" and
also as "The Courthouse Square". It is lo-
cated right In the heart of the business dls-
trlct of the City of Edna. In addition to
the above, the benches and lawn on this plot
of ground have been used by the public gen-
erally as a place of enjoyment and rest.
'Based on the foregoing fact situation,
I should appreciate an opinion from your De-
partment as to whether or not Jackson County
could sell this property should the Court-
house be located on another plot of ground
some two blocks away."
The deed of conveyance to Jackson County con-
tained the following:
"This entire conveyance, however, is
based upon this express condition subsequent,
to say: That if the said County of Jackson
shall fall to cause to be erected and com-
pleted upon sald.above conveyed property a
courthouse for Jackson County to cost not
less than Twenty Thousand ($20,000.00) Dol-
lars, and the .outer walls of which shall be
brick or stone, within the space of three
. .- _
Hon. Cullen B. Vance, page 3 (V-1510)
years from~the date '0fthi.s~deed, then this
conveyancesshall,become:nuU and void, and
all the titlesconveyed~,by'thepresent deed
shall at once'revert upon such default3 as
aforesaid, to the New York Texas and;,Mexlcan
Railway Company, and Its successors.
However, sinc'ethe condition waspcomplied with
there is no impediment against the sale of the property
in this respect.
We agree with you that the question concerning
the sale of the property and the changing the location
of the courthouse could be controlled by the holding in
the case of City of Tyler v. Smith County 246 S.W.2d
601, 605 (Tex. Sup. 19521,where.lnIt Is stated:
'There was never:any-express ~dedica-
tlon ,of the square in controversy asa ptibl&.c
square, so our problem Is to determine wheth-
er the record shows,a dedication by implica-
tion, which is said'to be analo ous to the
dpctrlne of estoppel In a. 28 C.J.S
Dedication 8.2, p. 507 In or.derto esiibllsh'
such a dedication there must have been a
clear and unequivocal Intention on the part
of Smith County to devote the square to
public use and acceptance by the public.
Oswald v. Grenet, supra. We have concluded
that such dedication Is shown In this case.
II
. . .
"There can be no doubt that’the public
accepted the dedication.' They ,usedit as,a
market place, as a 'parkingplace, as'a:place
for entertainment and rest, as aplaceefor
preaching services and polltlcalmeetfngs,
as a place to getwater for themselves and
their stock, ,and according to undisputed
testimony; they use It today as a 'place of
enjoyment and rest', 'to enjoy the roses,
shrubbery and various landscaping that has
been put there.' According to the weight of
authority, this establishes acceptance, and,
we so hold. 16 Am.~Jur., Dedication, Sec.
35, P. -383. ,,
_, .- .
Hon. Cullen B. Vance,page 4 (V-1510)
“Under these undisputed facts evidencing
dedlcatinn and after more than a century of
unquestioned general public use following sxid
accepting such dedication, it cannot justly
be said t&at Smith County can now convert the
square to private use. Of course, the county
may abandon the present square as a site for
a courthouse and build a new courthouse wher-
ever it chooses; but If It elects to do that,
the entire square must remain Impressed with
the right of the public to use it for general
public purposes; it cannot be diverted to
private uses. Lamar County v. Clements, 49
Tex. 347, supra.”
In Attly Gen. Op. V-1474 (1952) It was held
that land dedicated to the public for park purposes
could not be diverted for any other use, stating that
It must remain For the use of the public for park pur-
poses and cannot therefore be sold or exchanged.
In conneatlon with the above your attention
is directed to the fact that the City of Tyler case was
based upon facts which were unconkroverted. We do not
feel justified In assuming that there are no other Facts
which might be developed with regard to the intentions
to dedicate. Therefore, the answer to your question Is
dependent upon all the facts which might,later be de-
veloped and the application of the law as stated In this
,oplnion.
SUMMARY
Where there is a dedication and ac-
ceptance OF a courtho,usesite for public
use. it cannot be diverted to vrlvate use.
City of Tyler v. Smith County,-246 S.W.2d
ijO1 (Tex. Sup. 1952) .
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
J. C. Davis, Jr.
County Affqlra Division
E. Jacobson
Reviewing Assistant
Charles D. Mathews Assistant
First As&&ant
BA:am