North Texas Trust Co. v. Brittson

^* Writ of error dismissed for want of jurisdiction April 14, 1926. Appellees obtained the issuance of a temporary injunction, which, on motion to dissolve, was continued in force by the court until the trial of the case on its merits.

Appellant the North Texas Trust Company was the owner of Owenwood addition to the city of Dallas, having platted the same into lots, blocks, streets, etc., and sold to appellees and others lots in the addition.

The contention of appellees is that the company, in laying out and platting the addition, adopted a general plan or scheme for a restricted residential district; that block M of said addition, which is circular in form, was reserved for business purposes; that a circular street, 50 feet in width, separates blocks I and H from block M, completely encircling the latter block; that lots 1, 2, 15, and 16 in the west end of block I, and lots 12, 13, 25, and 26 in the east end of block H, form four triangular tracts surrounding block M; that the company represented to and agreed with appellees at the time of their respective purchases, and as an inducement, that block M was set apart as a community or civic center for business purposes; that lots 1, 2, 15, and 16 in block I, and lots 12, 13, 25, and 26 in block H had been set apart, reserved, and dedicated for parks, to be perpetually used for that purpose; and that no buildings or other structures or obstructions would be placed on said lots; and that neither of same would be sold or used for any purpose inconsistent with their use as parks or public grounds; that thereafter, the company, disregarding these representations and agreements, conveyed to appellant W. O. Barnett lot 2 in block I of the addition, who, at the institution of the suit, was engaged in erecting a large building to be used as a private residence on the lot, and that the company was contemplating the sale of other lots in the parks and the erection of buildings thereon; and it was further alleged by appellees that appellant Barnett bought with full notice of the status of said lots as parks, and of the rights and interests of appellees therein.

Appellees sought and obtained a temporary injunction restraining appellants and each of them, their agents, contracts, mechanics, and employés, from proceeding further with the erection of said building, and from selling or offering for sale, any portion of the land constituting a part of the parks as above mentioned.

The question presented for our consideration is whether the trial court abused its discretion in refusing to dissolve the temporary writ. Houston Electric Co. v. City of Houston (Tex.Civ.App.) 212 S.W. 198; Ward County, etc., v. Ward County, etc. (Tex.Civ.App.) 214 S.W. 490; Beirne v. North Texas Gas Co. (Tex.Civ.App.) 221 S.W. 301; Sutherland v. City of Winnsboro (Tex.Civ.App.) 225 S.W. 63; George v. Jonesville Oil Gas Co. (Tex.Civ.App.) 226 S.W. 445.

In view of the fact that this appeal is from an interlocutory order, and that the case will hereafter be tried on its merits, we refrain from any comment on the evidence, except in so far as it is necessary to properly dispose of the appeal.

The evidence, as revealed by the record before us, shows with reasonable certainty that the appellant corporation dedicated or reserved the four lots at the west end of block I and the four lots at the east end of block H of Owenwood addition for parks or public grounds; that appellant Barnett purchased with full notice of the status of the lots as such, and of the rights of appellees therein.

The courts of this state have said that, where the owner of land, by a map or by other unequivocal acts or declarations, indicates that a particular lot or plot is to be dedicated or reserved to or for a particular use of a public or quasi public character, those who are thus induced to purchase lots in an addition take, as appurtenant, every advantage, privilege, and easement which was represented as belonging to or as a part of same. It is immaterial whether the lot or plot is dedicated to a public use or is simply reserved for a quasi public use, for, in either case, the vendor and those claiming under him with notice may be enjoined by the owners of lots in the addition from applying the dedicated or reserved property to any use other than that for which it was dedicated or reserved.

Under such circumstances it is not necessary to show an acceptance of the dedication by the city or municipality, because the right which vested in purchasers of lots, and through them in the public, is irrevocable. Oswald v. Grenet, 22 Tex. 94; Lamar County v. Clements,49 Tex. 347, 354, 358; Wolf v. Brass, 72 Tex. 133, 12 S.W. 159; City of Corsicana v. Zorn, 97 Tex. 317, 78 S.W. 924; Sanborn v. City of Amarillo,42 Tex. Civ. App. 115, 93 S.W. 473.

As we find that the action of the judge complained of was justified by the law and evidence, no abuse of discretion on his part is shown. Therefore the order appealed from will be affirmed.

Affirmed.