City of Austin v. Puett , 344 S.W.2d 717 ( 1961 )

GRAY, Justice.

Appellee, Nelson Puett, Jr., filed this suit against the City of Austin to declare his title to a tract of 54.95 acres of land, described by metes and bounds, free of any easement claimed by the city and for in-junctive relief restraining the city from maintaining a bridge resting partly on his land and requiring the city to remove the bridge.

Appellee alleged that he was .the owner of the 54.95 acre tract of land; that said land is located outside of but adjoins the corporate limits of the city; that Shoal Creek forms the boundary between the said land and the city and is the eastern boundary of the land; that Twin Oaks Drive, a public street in the city, comes to a dead end at Shoal Creek opposite his said land; that Gullett School, an elementary public school, is located south of his land, and that there are no public ways on or across the 54.95 acre tract. He alleged that in July, 1959, the city, through its director of planning, obtained oral permission from appellee to place a footbridge across Shoal Creek at the west end of Twin Oaks Drive to connect with and rest upon appellee’s land “in order to provide temporary passage for school children walking to Gullett School * * * ” that in response to a request from the city for written permission to place the bridge partly on appellee’s land he wrote a letter on August 12, 1959 confirming his oral “permission for the temporary arrangement theretofore made,” and that thereafter the city moved a bridge to said location which bridge expends approximately 30 feet onto his land. Appellee then alleged that subsequent to the-time the bridge was placed as stated he-sought to subdivide his property and submitted to the city plans for such subdivision which showed an extension of Twin Oaks-Drive across Shoal Creek into his land; that he was advised by the city that it did; not intend to extend Twin Oaks Drive westward but proposed to leave said street dead-ended at Shoal Creek and that a crossing-on said creek would be designated opposite-appellee’s land at a point some 400 feet north of Twin Oaks Drive; that appellee-then revised his plans for subdivision of his land, withdrew “the temporary permission theretofore given for the footbridge”' in anticipation of developing his land for residence lots and on January 5, 1960 he-gave written notice to the city to remove the bridge from his land. Appellee further alleged that he

“ * * * gave the City of Austin permission in August, 1959, for the footbridge to be placed across Shoal-Creek from Twin Oaks Drive to Plaintiff’s land, such permission was given for the purpose only of permitting school children to reach Gullett school-under a temporary arrangement and only until such - time' as permission should be withdrawn by Plaintiff or until permanent arrangements, if any,should be made in connection with the' subdivision of Plaintiff’s land into lots and blocks. Such subdivision has not been made by Plaintiff, and no permanent arrangement has been effected by Plaintiff or approved by the City of Austin under laws and regulations controlling the subdivision of land in and near incorporated cities in this state.”

The City answered by a plea of not guilty, a general denial, special denials, and that appellee has dedicated a public way across his land for pedestrian passage which dedication was neither conditional nor temporary and is:

“August 12, 1959

“Mr. Hoyle M. Osborne

“City Planning Director

“City Hall

“Austin, Texas

“Dear Mr. Osborne':

’ “You certainly have my permission to move the bridge on Hunt Trail up to Twin Oaks Drive and let the children walk across it and álso come across my land to school.

“For your information, I will have— in a. very few weeks — preliminary, subdivision for that lan.d so you .can start thinking about putting in a permanent .type of bridge on Twin Oaks if you .•want one. ; •

“Yours truly,

“Nelson Puett.”

The city then .alleged that the dedication ivas accepted; that the bridge was promptly moved to the location and a walkway was improved from the west end of the bridge to Treadwell Boulevard; that appellee knew •of and acquiesced in the location of the bridge and walkway thereby fixing its location on the ground, and that since such time the same has been used by the public. The city.prayed for judgment declaring the existence of the public way dedicated by appellee and that he be enjoined from interfering with the public use thereof.

Appellee filed a motion for. summary judgment and accompanied it with his affidavit. The city answered the motion for summary judgment, attacked the affidavit of appellee attached to the motion and asked that it be stricken. The trial court granted appellee’s motion and rendered judgment quieting appellee’s title to the land in question, declaring that the city has acquired no rights in such land by dedication or otherwise, that appellee has the right to remove the bridge unless the same is removed by the city within thirty days, and enjoining the city from going upon appellee’s land except for the purpose of removing the bridge.

The city has appealed from the above judgment and here presents two points. These are to the effect that the trial court erred in granting appellee’s motion for summary judgment because: the motion is' not supported by affidavits meeting the requirements of Rule 166-A(e), Texas Rules of Civil Procedure; and genuine issues of material facts were properly raised.'

. Appellee’s affidavit attached to his motion for summary judgment states: that he has read the original petition filed in the cause, that he knows of his own knowledge that all of the allegations, statements and facts there pleaded. are true and' correct, “and I hereby adopt- the same in this my' sworn affidavit.” 'Appellee’s affidavit then states: that at all times mentioned he was and still- is the owner in' fee simple of the land in question;' that he wrote the letter of August 12, 1959 and attached a copy of such letter to his affidavit. He stated that subsequent to August, 1959 he learned the city did not plan a permanent type bridge on Twin Oaks Drive and that a permanent easement for the bridge- at that place “was being requested of me. I then wrote a letter to the Planning Director, dated January 6, 1960, and told him I wanted the footbridge removed immediately * * * and that if it was not removed within ten days I would move it and hill the city for the cost.” A copy of the letter is attached to the affidavit. He further said that the 54.95 acres of land lies outside of the corporate limits of the city and that the land claimed by the city “as mentioned above is beyond the boundaries and control of the city of Austin.”

The majority adopts the statement of the case hereinabove made. They disagree with me on the conclusion I have reached. Their views follow:

Associate Justice HUGHES’ view is:

The letter of August 12, 1959, from Mr. Puett to Mr. Osborne, measures the rights of the parties, as well as those benefited thereby.

The letter purports only to give “permission” to move the bridge on the Puett land and to “let” children cross the bridge and the land.

“Let” in the sense there used means to “permit or to allow.” It has the same meaning as “permission.”

“Permission” has been defined by 2 Bouv.Law Diet., Rawles Third Revision, p. 2569 as “A license to do a thing; an authority to do an act which without such authority would have been unlawful.”

In Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014, 1016, a license was defined as “a privilege or authority given to one or retained by one to do some act or acts on the land of another, but which does not amount to an interest in the land itself.”

In Latimer v. Hess, 183 S.W.2d 996, 997, Texarkana Civil Appeals, writ ref., it is stated:

“If the instrument in question grants an interest in the land, or gives the right of user of such land, then an easement is created; if only permission is given under such instrument for one to do some act or acts on the land of the one granting the right, then it is a license only. An easement is an interest in land; a license is merely a privilege to do some act or acts on the land, but is not an interest in the land itself.”

The general rule is that gratuitous licenses are revocable at the will of the grantor. 27 Tex.Jur. p. 860, 53 C.J.S. Licenses § 89, pp. 815-820, Fort Worth Stockyards Co. v. Brown, 161 S.W.2d 549, Fort Worth Civil Appeals, no writ history.

These are exceptions to this rule, the only one of possible application here is as stated in 27 Tex.Jur. supra, “Where the licensee has been induced to expend a considerable amount of money or labor in reliance on the subsistence of his license.”

It is not shown here that any “considerable” sum of money was expended in moving the footbridge. As a matter of common knowledge, we know that such an expenditure was not involved.

It is also my opinion that it was incumbent on the city to plead and substantiate equities relied on to make the license irrevocable. This it failed to do.

Chief Justice ARCHER’S view follows .-

I would not disagree to remand this case because I question the sufficiency of the appellee’s motion for summary judgment with its accompanying affidavits and reference to the original petition, but I do not believe that the manner in which the use or dedication of the walkway as claimed by appellee constitutes a permanent dedication to the city for the public of the undescribed area.

As all of the material recitations and statements as .well as the letters are set out in Associate Justice GRAY’S opinion I do not restate them. But assuming that all such could be substantiated on a trial, still such would not as a matter of law constitute a binding dedication by Puett.

I believe at most the statement attributed to Puett and the letter constitutes no more than a permissive grant to a named limited segment of the public.

Associate Justice HUGHES has expressed his views and has cited certain authorities which I accept and I see no reason to recite them.

It is the opinion of the majority that the judgment of the trial court be and it is affirmed.

Affirmed.