McNary v. Reeves ( 1970 )

CHADICK, Chief Justice.

On September 16, 1968, Jack Reeves began construction of an automobile service station on a 1.077 acre tract of land in the Isaac Skillern Survey of Gregg County, Texas. The structure erected extended well into and occupied a significant portion of a vehicle passageway approximately 25 feet wide along the north side of the 1.077 acre tract. Beulah McNary, in her own behalf “and for the general public similarly situated”, instituted a lawsuit naming “Jack Reeves, Individually, and dba Mobile Oil Station, and Maggie Lee Reeves, Individually, and as Independent Executrix of the Will of Homer L. Reeves, deceased”, as defendants for the purpose of enjoining the defendants named from obstructing the passageway, for damages, etc.

The tract upon which Reeves built is a rectangular lot severed from a 10.4 acre tract which was set apart to Mary Smith, mother of Beulah McNary, in a division of the estate of Charlie Key, deceased. The instrument evidencing the conveyance of the 10.4 acre tract to Mary Smith is dated January 13, 1928. In 1931 Mary Smith and her husband built a house on the 10.4 acre tract, and the passageway here in question was the driveway or road from their house to the Pine Tree public road. This passageway is frequently referred to in the record as Conrad Street, but such reference in the discussion that follows is for convenience in expression and does not imply a determination by this court that the passageway has the characteristics of a public street or road. The evidence, excepting certain details to be examined and discussed separately, is unquestioned that since 1931 the public made the same common, conventional and routine use of the driveway that is made of an ordinary public street, and that before the area was incorporated into the City of Longview the county graded and improved the strip. Prior to incorporation a local improvement association in the Greggton community assigned it Fifth Street as a name, and put up street markers accordingly. The City of Longview changed the name to Conrad Street and erected street markers so designating it and continued maintenance after incorporation. All the while Mary Smith and her successors in title, particularly Beulah McNary, continued to use the strip for passageway in common with the public. At the time appellee Jack Reeves started construction he was aware of the passageway, its use and posted name.

In 1944 Mary Smith died. Appellant, Beulah McNary, is one of her seven chil-den. In 1954 these children partitioned the 10.4 acre tract by executing warranty deeds to each other. Matthew Smith received a 1.077 acre tract fronting on Pine Tree Road. This tract was subsequently conveyed to H. L. Reeves, and a strip thereof now called Conrad Street is the subject of this lawsuit. Beulah McNary was deeded an 1.077 acre tract immediately adjacent and east of Matthew Smith’s tract; and at the date of the lawsuit her house and place of residence occupied the lot. Matthew Smith’s tract lay between Beulah McNary’s tract and Pine Tree road. In 1954 Matthew Smith conveyed his 1.077 acres to Billy Ray Martin by warranty deed. Thereafter, on June 8, 1964, Matthew Smith and Billy Ray Martin, by warranty deed prepared by Billy Ray Martin as Matthew Smith’s attorney, conveyed the same tract to H. L. Reeves. Besides the usual provisions of a warranty deed this last instrument contained this language, to-wit: “This conveyance is made subject to any all restrictions, reservations and easements of record.”

In the trial of the ca%e four special issues were submitted, two conditional, and in compliance with the trial court’s instructions only the first two were answered; such issues and the jury answers are as follows, to-wit:

“SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that prior to May 12, 1969, a roadway known as Conrad Street and identified on Plaintiff’s Exhibit No. 1, designated as XYQZK, was dedicated, as that term is defined herein, as a public road by the owners of the land across which said road traveled ?

Answer ‘yes’ or ‘no’.

ANSWER: No

You are instructed that an intent to dedicate land for the purpose of a public road by the owner must be shown by his act and declaration; and such act and declaration should clearly and unmistakably show his intent to dedicate the land absolutely and irrevocably to the use of the public and an acceptance thereby by the public.

“SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evidence that the tract shown on Plaintiff’s Exhibit No. 1, designated as XYQZX was used as a public road continuously, open and adversely for any period of ten consecutive years or longer prior to the filing of this suit?

Answer ‘yes’ or ‘no’.

ANSWER: No.

You are further instructed that the term ‘adverse possession’ is defined as the actual and peaceable appropriation of land commenced and continued under a claim of right inconsistent with and hostile to the claim of another.

The term ‘hostile’ is defined as a using of the road by the general public with the intent to claim it to the exclusion of any inconsistent claim or use of the road by the owner or owners of the land across which it runs. The use of the road by the owners and others at the same time raises the presumption that the use by others is permissive only and there must be present sufficient evidence to show use by the others under a claim of right. Mere joint use of the road by the owner and the public at the same time is not determinative.

“If the nature of the use is such as to show the owner that the users are claiming under a right independent of any permission from owner there is a requisite adverseness. In other words, the mere joint use of the road by the owners and others during the same time is not destructive of a conclusion of adverseness if there are other facts present to show use by others is under a claim of right in themselves.”

Unanswered special issue Number 3 inquired whether or not the use by the general public of the roadway was with the acquiescence of the plaintiff and the other owners of the property the passageway crossed, and Number 4 submitted the question of damages. A recovery by the plaintiff was limited by the charge to proof of dedication or adverse use.

The appellant Beulah McNary has briefed 32 points of error. The appellant’s brief earnestly advocates reversal on the ground that the proof showed a dedication of the strip to public use as a matter of law, and alternatively, that as a matter of law the public acquired an easement for street purposes by adverse use. Also, no evidence, insufficient evidence and great weight and preponderance of the evidence points of error are urged. In addition, the charge, instructions and issues submitted by the court are attacked as erroneous, as well as the failure of the court to submit certain requested issues and instructions.

In consummating a division of the Mary Smith 10.4 acre tract, Beulah McNary and other heirs (except Matthew Smith) by warranty deed conveyed to Matthew Smith the 1.077 acres heretofore mentioned as having been set apart to him. The conveyance was made subject to any reservations or restrictions of record. Later, Matthew Smith made the conveyance to H. L. Reeves heretofore mentioned, subject to restrictions, reservations and easements of record. There is no evidence that the strip called Conrad Street was at any time prior to the time of the Beulah McNary et al to Matthew Smith deed, or Matthew Smith to H. L. Reeves deed characterized or shown as a public street, road or passageway of any nature by any restriction, reservation or easement in an instrument recorded in the deed records of Gregg County, Texas. The absence of a recorded reservation or easement forces the question of estoppel by deed to first consideration. Beulah McNary and her co-grantors in the deed to Matthew Smith recited that for the considerations set out they “granted, sold and conveyed, and by these presents do grant, sell and convey unto Matthew Smith” the property described. Such language in the conveyance implies a covenant, as a matter of law, that the estate granted is free from encumbrances. Tex.Rev.Civ.Stat.Ann. art. 1297 (1962).

Having convenanted that she had an unencumbered title to the strip, equity will not permit Beulah McNary to deny that she had title to the strip at the time of her conveyance for the purpose of defeating the title of her grantee, Matthew Smith, and those in privity with him, H. L. Reeves and his successors in title. The following excerpt from 28 Am.Jur.2d Estoppel and Waiver, § 10 (1966) aptly states the doctrine :

“ * * * The well-established general principle is that a grantor and his privies are estopped as against the grantee and those in privity with him to assert anything in derogation of the grant or from denying the truth of any material facts stated in the conveyance.

“ * * * One who assumes to convey an estate by deed will not be heard for the purpose of defeating the title of the grantee, to say that at the time of the conveyance he had no title, or that none passed by the deed, and he cannot deny the full operation and effect of the deed as a conveyance. In other words, he is estopped to dispute the title granted. The rule is frequently stated in the broad language that a grantor of land with full covenants of warranty is estopped to claim any interest in the granted premises, or that the grantee and his successors have less than the interest conveyed. * * * ”

The conclusions stated are supported by such authorities as McClung v. Lawrence, 430 S.W.2d 179 (Tex.Sup.1968); Fannin Investment and Development Co. Inc., v. Neuhaus, 427 S.W.2d 82 (Tex.Civ.App. Houston 1968, no writ); 22 Tex.Jur.2d Estoppel, § 3 (1961); 31 C.J.S. Estoppel §§ 10 and 13 (1964).

At this point it becomes necessary to consider related questions. The appeal record shows that the strip was designated and treated as a street by the state, county and city authorities, particularly by a Resolution of the City Council, an official city plat, official State Highway Department maps and drawings pertaining to the state highway system, as well as official records of other governmental subdivisions. The state’s Registration statutes, Tex.Rev.Civ. Stat.Ann. Arts. 6591 through 6652, (1969), provide a comprehensive, convenient and effective method of exhibiting publicly the condition of land titles in a county, and all purchasers of land therein are conclusively presumed to have notice of the condition of a title reflected by the recordation of instruments in compliance with registration laws. Mention in a deed of reservations and exceptions of record, as in this instance, refers to the county registration records, in the absence of proof to the contrary, because such records are the sole legal method of giving binding public notice of the reservation or exception; in the context of a deed, reference to other records for title information, unless the record is specified, would be meaningless. It has been previously mentioned that no reservation, or exception, indicating the strip in question was a public street had been recorded in the Gregg County Deed Records in compliance with the recordation statutes. It would follow that the strip called Conrad Street was not excepted from the conveyance or reserved as a street by either Beulah McNary’s deed to Matthew Smith, or Matthew Smith and Billy Ray Martin’s deed to H.UL. Reeves.

Appellant Beulah McNary did not plead and does not rely for recovery upon a theory of a right-of-way by necessity or an easement appurtenant to and essential to full enjoyment of adjacent lands retained by her as a grantor. But sufficient time has elapsed since the date of her deed in 1954 and before suit for the strip to have been converted to a public street by adverse use, and of course, during such time a dedication of the strip to street purposes might have been made. Sec. 2, Tex.Jur.2d Easements, Secs. 13, 16 and 25 (1961) ; see also 28 Tex.Jur.2d Highway and Streets, Secs. 8 through 20. Earlier the issues submitting adverse use, as well as dedication, together with the jury’s findings thereon, were copied. The evidence is sufficient to support the jury’s answers. Under this record it is not necessary to decide, but it is questionable whether the evidence, when confined to the period between 1954 and the date of the suit, actually raises such issues. Both Beulah McNary and her brother, Matthew Smith, testified that their parent Mary Smith and her husband dedicated the strip as a public road, but they were referring to actions occurring many years before 1954. Since Beulah McNary was estopped to assert anything in derogation of the title passed by her deed made in 1954, she was necessarily confined to facts showing either adverse use for the limitation period or a dedication after the date of her 1954 deed. Estoppel aside, review of the evidence shows it is sufficient to support the jury’s findings to the special issues though all evidence adduced be considered.

In connection with the discussion in the immediately preceding paragraph, account should be taken of Beulah Mc-Nary’s class action pleading. It appears from the pleadings that the rights sought to be enforced, so far as “the general public similarly situated” is concerned, are several rather than joint rights. Each member of the public similarly situated, that is, each member of the public suffering injury to a material property right might, if the strip is a public street, enforce his individual right. 28 Tex.Jur.2d, Secs. 196, 199 (1961). Joinder of the general public similarly situated as a party to the action is neither necessary nor indispensable. See 1 McDonald’s Texas Civil Practice, Parties, Sec. 3.34.1 (1965). In a class action of this nature the rights of the parties making up a class do not give Beulah McNary a stronger case or rights that she does not have individually. All American Airways v. Elderd, 209 F.2d 247 (CA2d 1952); Nagler v. Admiral Corporation, 248 F.2d 319 (CA 2d 1957). The present rule pertaining to class actions, Tex.R.Civ.P. 42, was adopted unchanged from Federal Rule 23(a) (c).

All of appellants’ points of error have been considered. No error requiring a reversal of judgment is found. The points of error are respectfully overruled and the judgment of the trial court is affirmed.