County of Harris v. Taylor , 58 Tex. 690 ( 1883 )

West, Associate Justice.

Appellees brought this suit against the appellant, alleging that in 1837 A. C. and J. IL Allen were the owners of the land upon which the city of Houston now stands; that in 1837 the said Allens laid the same out in blocks and lots, public streets and public grounds, and forms now the principal part of the business portion of the city of Houston; that the said Allens caused to be made a map of the grounds so laid out, which exhibited the lots and blocks, the public streets and public grounds, or blocks dedicated to the public use of said city, and had it recorded in the county clerk’s office; that they publicly exhibited said map, and sold to others the lots and blocks according to said map, and purchasers were induced to buy on the faith of the representations made on said map, "with reference to the public streets and blocks as designated on said map; that one of said blocks was numbered 31, and was designated and marked on said map “ courthouse,” by which designation and mark, and .other acts of said Allens in connection therewith, the said block was dedicated by the said Allens to public use for a court-house, and the adjacent grounds surrounding, but not for any other use by the public; that the said Allens never parted with the title to said block further than they may be said to have done so by their act of dedication aforesaid; that the public accepted such dedication, and that afterwards the inhabitants of the town of Houston were incorporated and made a body corporate in July, 1837, and have ever since been so incorporated.

That all subsequent maps of said city have been in accordance with the one made by the said Allens; that in the year 1838, without any permission from the corporate authorities of Houston, the county of Harris had a log-house erected on said block marked “ court-house,” which house it used for a common jail for some years, until it became unsafe; that the erection of said log-house on said square was complained of by the citizens, -?s well as by the city of Houston, and that about September, 1840, the said corporate authorities demanded of said county to remove said jail from off said square, but the commissioners’ court of said county deemed it inexpedient to do so at that time, because of the embarrassed state of the county finances; that the county afterwards erected on said square a court-house, and inclosed said square with a neat and substantial iron fence, and that said square has since been laid out in walks and grass plots for the use and pleasure, of the public, and has been planted in shade and ornamental trees and flowers to adorn it for the use of the public; that the county in 1856 purchased a lot in said city, locating thereon a county jail, and still owns it, and is used by it for such purpose; that appellees and others purchasing property abutting said square acquired an easement and privilege of said block for the purpose only of a court-house being thereon; that the county of Harris has determined to build a common jail on said court-house square, thereby proposing to appropriate said block to the use of the county, which does not own it, and to a use inconsistent with the express purpose for which said block was dedicated. That appellee Taylor is the owner of lots Nos. 8, 9 and 10, in block 46, which lots front on said square, and directly in front of the jail as it is now proposed to erect it; that at the time he purchased said lots it was generally understood that said square would not be used for the erection of another county jail, and that since then he has erected a dwelling-house on said lots at a cost of $5,000. That the appellee Gabel purchased lot No. 7, in block 30, fronting on another side of said square, in the year 1868, and since then he has erected a brick residence on said lot, at a cost of $10,000; that if said jail is erected it will be within one hundred feet of their houses, and that if said jail is erected it will be both a public and a private nuisance, that will greatly depreciate the value of their property.

The appellees obtained an injunction against the appellant and its commissioners’ court, restraining said commissioners’ court from taking further steps in the erection of said jail on said square.

The appellant answered by a general demurrer and a general denial, and by an answer admitting the map and plans of the city of Houston as made by the said Allens in 1837, and that property was sold in reference to the same, but saying that said block No. 31 was marked “ court-house square ” instead of “ court-house,” and that the said Allens dedicated said block No. 31 to the county of Harris for its county court-house and county buildings, to be used for the benefit of said county; that said county immediately accepted said block, took possession thereof, and has had and held peaceable possession of the same, with its court-house and other buildings thereon, to the present time; that in Hay, 1838, the county, through its commissioners’ court, erected a court-house and jail on said square, and that the jail continued on said square in use by the county for the confinement of its prisoners until 1854, when it became useless ; that the jail was put on said square during the life-time of A. C. and J. K. Allen, and with their consent; that the appellee Taylor acquired title to his lots 8, 9 and 10 while the jail was on said square in the use of the county, and had notice of the location of said jail and of the claims and right of Harris county, and that he and his co-plaintiff were estopped from setting up any pretended easements in their favor. Appellant alleged that the jail was a public necessity; that it would be constructed in such manner as would prevent it from being either a public or private nuisance; that a street eighty feet in width intervened between said square and the proposed location of said jail and residence and property of appellees. That the building of said jail was authorized by the commissioners’ court, and that the building of it was not inconsistent with the public use to which said square wras dedicated by the said Allens.

The case was tried, verdict and judgment were for appellees, per- - petuating injunction.

Appellant filed its motion for a new trial, which was overruled and an appeal taken.

The case is now here for revision. The court did not err when it assumed in the introductory paragraph of its charge, as an admitted fact, that the appellees had bought their lots with reference to the city map, calling for the street on which they front, and that they, now and when the suit was filed, owned the lots claimed by them. Their title to the lots was admitted. Hor was it a material error, or in fact of any consequence at all, that the court failed in its charge to submit to the jury the question as to the dates at which the appellees acquired title to their lots. The date of Gabel’s purchase was expressly admitted, and there was no issue as to the date of Taylor’s purchase. The dates of both purchases were in evidence before the jury without dispute. The court was not bound, under the facts of the case, to call the jury’s attention more especially to this issue. The appellant very properly did not deem the matter of sufficient importance to ask the court to specially instruct the jury on the subject. Hor did the court err, under the pleadings and evidence, in informing the jury that block Ho. 31 in the city of Houston was a public square.

The court also ruled correctly in permitting parol evidence to go to the jury to show the purpose and intention of the original donors in making the dedication. Hor was there any bill of exceptions reserved to this action of the court. In the case of Lamar County v. Clements, 49 Tex., 349, the same question was before this court. It was there held, after a full examination of the authorities, that the county of Lamar, having accepted the block or square in question from the donor for the purpose of erecting a court-house thereon, it was estopped from making use of the property thus dedicated for an altogether different and inconsistent purpose, and such as obviously tended, as in this case, to the injury of those who had purchased lots upon the faith of such dedication. Lamar County v. Clements, and authorities there cited.

[Opinion delivered February 20, 1883.]

There is no error in the judgment, and it is affirmed.

Affirmed.