Pois v. Sharman , 296 S.W. 665 ( 1927 )

The main question involved in the case is whether there was a dedication and acceptance of the premises, aside from lot 14 in block 8, to the public use of a street. If the particular streets were in truth dedicated to the public use, and that dedication was duly accepted, then the county of Harris, through the commissioners, was at liberty to open the streets, and occupy and maintain them, without any proceedings whatever, because simply engaged in regulating and improving streets belonging as such to the county. And the commissioners, as the county authorities, could assert such prior completed dedication to the public use, as an easement for a highway that had already passed, in denial of the plaintiff's claim of compensation therefor. A common-law dedication, when complete, passes an easement in the land, operating to preclude the owner from resuming his right of private property or any use inconsistent with the public use. Thus the question does not necessarily become one of condemnation only, but of title, for a condemnation proceeding assumes the landowner's conceded right of title, and is framed solely to ascertain his just compensation for parting with it. The facts of the present case are without dispute, and the decision of the question depends upon the legal effect attaching to such facts. Whether one has dedicated a road to the use of the public as a highway is a question of intention. Lamar County v. Clements, 49 Tex. 347; Wolf v. Brass, 72 Tex. 133,12 S.W. 159. A dedication can only be made by the owner of the land in fee, and the intention to dedicate must clearly appear, though such intention can be shown by words or by acts unequivocal and without ambiguity. As appears, two adjoining parcels of land were subdivided into numbered lots and blocks with intersecting streets, and were accordingly platted, which plat was duly recorded. The parcels were owned in severalty by Mrs. Pois and her father, H. T. Sapp. The two owners, as appears, mutually agreed to unite the two parcels into the subdivision, or arrangement of lots and blocks with intersecting streets, and to plat the same, as an undertaking projected for the mutual benefit of both of them. Mrs. Pois admits as a fact that the inclusion within the subdivision of her parcel of 7 1/2 acres of the original Totten land, as well as the platting of it as an addition, was with her concurrence and consent. She testified:

"I consented to my father platting my Totten property on that map. * * * I let him include it in his. * * * He platted with my consent the Totten property and his property."

And Mrs. Pois does not contend in the present suit that the laying out of her 7 1/2 acres into lots, blocks, and streets, so as to constitute a part of "Sapp Gardens addition," and "the platting" of it at the outset, was without her consent and concurrence. She merely claims that her father "put it (the plat) on record without my knowledge," and that, "so far as dedicating any streets to the county or for public use, I didn't know my father did it." This testimony is not inconsistent with her admission that she had consented to "the platting" of her land. She meant to be understood as only denying that she knew of the plat's being placed "on record" and of the following words appearing on the recorded plat:

"I, H. T. Sapp, the owner of the subdivision shown on the above map, do hereby dedicate to public use the streets shown thereon."

And it is not controlling as a fact that Mrs. Pois did not know of "the recording" of the map that was executed, or that the original map did not have thereon the special words of her father. The acts of Mrs. Pois outside of the record of the plat go conclusively to show an intention to dedicate the ground represented as streets on the original map that was executed for public use. She admitted that, since the making of the subdivision and the platting of it, and in recognition of its reality, she has bought and sold lots "east of Lula street" according to the plat of the subdivision; quoting from her testimony:

"I sold some property in Sapp Gardens to Mrs. Ivey. I sold her two lots that were deeded to me after my father's death by my mother. One is lot 8 in block 3, and the other is lot 6 in block 3; both of those are in Sapp Gardens. My mother conveyed to me lots 6, 7, and 8 in block 3, and also lots 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 in block 2, and lot 7 in block 1 all in Sapp Gardens. They were deeded to me in settlement of the estate. I placed those deeds on record. On November 16, 1917, my father and my mother conveyed to me twelve lots in block 4 in Sapp Gardens. * * * I recognize the right of Mrs. Ivey to use Harty street from Lula avenue east. I admit that the people to whom I have sold in that addition have the right to use Lula avenue and the part of Harty street east of Lula avenue. I contend that the balance of Harty street is mine. All these conveyances that I have made were east of Lula avenue, and (such property) was acquired from my father's property. I recognize that my father had the right to put the plat on record so far as his property was concerned. He had platted it when I acquired from him the lots east of Lula avenue. All the sales I have made have been in that part of my father's property. None of my Totten property has been offered for sale."

The deed from H. T. Sapp and wife to Mrs. Pois, dated July 13, 1916, and filed for record July 18, 1916, describes the lot s "of Sapp Gardens addition" and "beginning on the east of Lula avenue" and fronting "west of Lula avenue." The general warranty deed from Mrs. Pois to Mrs. Ivey, dated March 26, 1923, conveys "lot 6 in block 3 in what is known as the Sapp Gardens addition to the city of Houston as shown by the plat recorded in plat records of Harris county, said lot fronting on Lula avenue, Sapp Gardens addition." In such circumstances the intention of Mrs. Pois is evident to sanction and adopt the making of the subdivision as a whole, and of the map or plat of it. The deeds made to her and by her referred to the designated lots and blocks in describing the property, manifesting her acquiescence and recognition of the subdivision and plat as Sapp Gardens addition, and giving assurance that the ground, as so platted, shall remain intact. The laying out of lands in lots and streets, and making a plat, and the sale of lots abutting upon such streets, constitute an incipient dedication of them to the public. There is an implied covenant, not merely that such purchasers shall have a right of way over the street upon which the granted ground is situated, but that all persons may use it. It is not essential that the ground dedicated to the public for a street should be used for that purpose within any limited time, in the absence of any condition to that effect. Acceptance is in time if made at any reasonable time before the offer to dedicate is revoked. And acceptance by the proper county authorities is plainly established in the case. The appellant seems to contend that, although the dedication was complete as to her father's portion of the addition, yet it was ineffectual as to her portion lying west of Lula avenue. It is rested upon her evidence that "All of these conveyances I have made were east of Lula avenue, and was the property acquired from my father. I recognize that my father had the right to put the plat on record so far as his property was concerned. None of the property which I acquired from Totten has been offered for sale." The mere fact that Mrs. Pois retained had did not offer for sale any of her lots on her separate tract did not operate to be a revocation pro tanto of the dedication as originally made. The two tracts were platted as one undertaking, "Sapp Gardens addition." Lula avenue and Harty street were laid across both tracts for the benefit of both tracts, and were intended to be permanent. They were intended as a common passageway for all the lots as a whole. The location of the addition as a whole, the belief of the purchasers that they will renumber and extent of the streets, and the main permanent and perpetual, were material inducements to the purchase. There is no pretense that she timely, or at all, changed the plat by discontinuing the streets, or that the purchasers of the other lots and the county authorities acquiesced in a revocation of the dedication originally made. The proper county authorities had duly accepted the Emma avenue and Harty street by working on them as early as 1917. Dozier v. City of Austin (Tex.Civ.App.) 253 S.W. 554. She was cut off them subsequent retraction in virtue of the facts.

The plat shows nothing more than a straight 40-foot street. Therefore, the contention that there should be a limitation of the right granted to 24 feet cannot be supported. The county authorities, the same as the purchasers, were entitled to enter upon and use the streets to the extent of the right granted.

We have duly considered all the assignments of error, and have concluded that each one of them should be overruled.

The judgment is affirmed.