Long v. Cruger , 9 Tex. Civ. App. 208 ( 1894 )

The appellant brought this suit to restrain the appellee from placing a house upon, and thereby obstructing, an alleged public street in the city of Waco, Texas. There is no statement of facts in the record, both parties being satisfied with the conclusions of fact filed by the trial judge. The appellant holds under a deed from the appellee conveying to him two contiguous lots, one of which, according to the description given in the deed, is on the corner of Speight and Tenth streets. It was shown that the appellee was about to erect a house adjoining said corner lot, and upon what — according to said deed — would be a part of Tenth street.

The appellee averred in her answer, that the ground upon which she proposed to build the house was not in fact a public street; that Tenth street had never been established or opened up through her property; that at the time she sold the two lots to appellant it was understood that they bordered on but one public street, which was Speight; and that when Tenth street should be extended and opened up across the appellee's land one of said lots would be on the corner of Speight and Tenth streets, and that appellee did not intend to open up Tenth street across her land unless the city paid her a reasonable compensation therefor; that a mistake was made in writing appellant's deed, so as to make it appear that Tenth street had been opened up or dedicated as a public street across appellee's land at the time of said purchase.

A general demurrer was addressed to appellee's answer, which the court below overruled, and this ruling is assigned as error.

We think the ruling was correct. As against a general demurrer the answer was sufficient. Appellee's special answer, as above summarized, is sustained by the findings of fact; and, being sufficient in law to defeat appellant's cause of action, the court below correctly rendered judgment for appellee.

Judgment affirmed.

Affirmed.