Bowers v. Machir

Decision Date02 December 1916
Docket Number(No. 8593.)
Citation191 S.W. 758
PartiesBOWERS et al. v. MACHIR et al.
CourtTexas Court of Appeals

Appeal from District Court, Tarrant County; R. B. Young, Judge.

Suit for injunction by A. L. Bowers and others against C. C. Machir and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Thompson & Barwise, of Ft. Worth, and J. M. Chambers, of Dallas, for appellants. Mercer, Wall & Rouer and Holder & Eaton, all of Ft. Worth, for appellees.

DUNKLIN, J.

On May 25, 1904, J. A. Lee, who was the owner of block 8, of the Field Welsh addition to the city of Ft. Worth, subdivided and platted said block into lots, streets, and alleys, a plat of which subdivision was duly recorded in the Deed Records of Tarrant County. Following is a copy of said plat: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The following is the written declaration of Lee with reference to the plat, which was filed for record as a part of the plat:

"Know all men by these presents that I, J. A. Lee, the owner of block No. 8 of the Field-Welsh addition to the city of Fort Worth, Tarrant county, Texas, do hereby adopt the foregoing plan for subdividing same, to be known as `Lee's subdivision of block No. 8 of the Field-Welsh addition' to the city of Fort Worth, Texas, and do hereby dedicate to the use of the public the streets and alleys as shown thereon, except that part of the alley marked `Reserved' lying west of lots 1 to 8. I also reserve to myself the right to use the dirt from Lake street that is cut thereon when said street is graded. I reserve to myself the right to cross the streets and alleys or to run on said streets or alleys shown on said plat with water pipes from the well now located on lot 1."

Thereafter, on January 11, 1906, Lee sold to J. C. McKain lots 25 and 26 shown in the plat, said lots being described by reference to the recorded plat. On June 10, 1907, McKain and wife sold the lots to Hattie L. Manning, who, on April 7, 1909, sold the same to A. L. Bowers. In each of the two deeds last mentioned the property was described in the same manner and with reference to the same plat, and both of those deeds were duly recorded in the record of deeds of Tarrant county. On December 5, 1911, Miss Erna E. List purchased from the heirs of J. A. Lee, deceased, lot 34 shown in said plat, and in 1914, Mrs. Pearl Machir purchased lot 35 from the same heirs. During the summer of 1915, the board of commissioners of the city of Ft. Worth passed the following ordinance:

"Be it ordained by the board of commissioners of the city of Fort Worth:

"Section 1. That a 20-foot alley fronting on South Lake street in block 1000, and lying between lot 34 and lot 35 in block 8 of J. A. Lee's subdivision of Field-Welsh addition to the city of Fort Worth, be and the same is hereby ordered closed and the right to the use of said alley is hereby granted and vested one half to the owner of lot 34 and one half to the owner of lot 35, so that the owners of said property will each control and own up to a line drawn through the center of said alley.

"That this ordinance shall take effect and be in force from and after its passage."

On July 1, 1915, soon after the passage of said ordinance, C. C. Machir, husband of Mrs. Pearl Machir, and Miss Erna E. List caused a fence to be erected across the east end of the 20-foot alley described in the city ordinance, and also put in a sidewalk and curbing across the west end of the alley, and on the east line of Lake street, and at that time Miss List was the owner of lot 34 and Mrs. Pearl Machir the owner of lot 35. Later, Miss List sold lot 34 to her mother, Mrs. Alice M. List. On June 13, 1916, A. L. Bowers, as the owner of lots 25 and 26, joined by his tenant, C. M. Harris, instituted this suit in the district court against C. C. Machir, Miss Erna List, and Mrs. Alice M. List, to require the removal of the obstructions so placed across the two ends of the 20-foot alley mentioned above and to restrain any further obstruction of the same. In connection with such permanent relief, plaintiff also prayed for a temporary writ of injunction for such relief pending the suit. On June 13, 1916, the application for the temporary writ was heard and denied by the district judge such action on his part being predicated upon the following findings of fact, and conclusions of law:

"(1) The passway in question was dedicated to the public on May 25, 1904, by J. A. Lee by making and recording the plat as alleged by the plaintiffs, and the same had been continuously used by the public as a passway until it was closed by defendants Machir and Erna List, about July 1, 1915.

"(2) Plaintiffs and defendants all hold, under the said J. A. Lee as common source of title, as alleged by plaintiffs, and defendants each had notice and knowledge of the public character of the passway at the time they respectively acquired their titles to the adjacent lots.

"(3) Defendant Erna List had sold lot 34 to her mother, Alice M. List, prior to the filing of this suit, but after same had been closed, and had delivered possession thereof to her.

"(4) Upon a petition of defendants and others, of which plaintiffs had no notice, the city commission of the city of Ft. Worth, a few days prior to said closing, enacted an ordinance closing said passway, and afterwards upon petition of plaintiffs and others refused to repeal said ordinance.

"As a matter of law, I conclude:

"1. The city of Ft. Worth is a necessary party to this action.

"2. No right of action is shown against defendant Erna List because of her having disposed of the property adjacent to the passway in question, and has no further interest therein.

"(3) The city of Ft. Worth, by the terms of its charter, had power to close said passway, and the ordinance so declaring is valid and binding upon plaintiffs, and they are therefore not entitled to the injunction prayed for."

From the order so made plaintiffs have prosecuted this appeal.

As noted already, the alley was closed by Machir and Erna List. The city had nothing to do with the closing. The evidence shows that the ordinance was passed upon the application of the owners of property fronting on Lake street between Dashwood and Rosedale streets, and it is shown conclusively that the action of the commissioners in passing it was merely to abandon any claim on the part of the city to the alley as a public alley of the city, and to allow the owners of lots 34 and 35 to close it. The mere passage of the ordinance did not give any cause of action against the city such as is asserted by the plaintiffs in the present suit. The closing of the alley, if wrongful, and that alone, gave rise to a cause of action in plaintiffs' favor, if they have a cause of action for such wrongful closing. Hence the conclusion of the trial judge that the city of Ft. Worth was a necessary party to the suit was erroneous, even though it could be said that the city was a proper party. Burton Lumber Co. v. Houston, 101 S. W. 822; State v. Franklin, 133 Mo. App. 486, 113 S. W. 652.

By other assignments appellants insist that the trial judge erred in holding, in effect, that the city ordinance was binding upon the plaintiffs, and gave to the defendants the legal right to close the alley. It is well settled by the decisions of this state, and of many other states as well, that if the owner of land lays out and plats the same into lots and public streets and alleys, and sells such lots by reference to the plat, the purchasers of such lots acquire as appurtenant thereto the right to use the streets so dedicated, which right is a property right acquired by purchase, and entitled to the same protection as the title to the lots themselves, and this right is not limited to the streets on which the lots of such purchasers are situated. Oswald v. Grenet, 22 Tex. 94; Lamar County v. Clements, 49 Tex. 347; Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924; Corsicana v. Anderson, 33 Tex. Civ. App. 596, 78 S. W. 261; Stevens v. City of Dublin, 169 S. W. 188; Kalteyer v. Sullivan, 18 Tex. Civ. App. 488, 46 S. W. 288; Elliott on Roads and Streets (3d Ed.) §§ 129, 130, 131, 132.

Appellees insist that, while the dedicator of such a plat is estopped to deny the purchaser the right to have the streets and alleys so dedicated kept open, the city, as trustee for the public at large, has the right to close such streets whenever the interest of the public demands it. In other words, they insist, in effect, that the action of the city in ordering the alley closed was a reasonable regulation within the power of the city commissioners. By section 1, c. 4, p. 246, Special Laws of the Legislature of 1909, the city of Ft. Worth is given exclusive power and control over the streets and alleys of the city, with express power to vacate or close the same. And by article 854, Vernon's Sayles' Texas Civil Statutes, any incorporated city or town in the state is also vested with the exclusive control over streets, alleys, and public grounds of the city, with power to alter or vacate an alley in a block within the city upon the written application of the owner of the block, or if there be more than one owner, then upon the written application of all of the owners thereof, uniting in such application. While this statute authorizes the vacation of an alley, it does not authorize the closing of the same. Stevens v. City of Dublin, 169 S. W. 188. It is further provided in that statute that when such an alley is thus vacated, it shall "thereupon revert to and become the property of the owner of the block of which it was a part, or if more than one, then to the owners of the adjoining lots therein, each extending to the center of the alley so vacated." The provision so quoted from the statute does not appear as a part of the city charter, and it would seem that the city in passing the ordinance quoted...

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16 cases
  • Simmons v. Holm
    • United States
    • Supreme Court of Oregon
    • November 22, 1961
    ...procedure, if any, prescribed by statute, and the record should show the existence of jurisdictional facts. * * *' See, Bowers v. Machir, Tex.Civ.App.1916, 191 S.W. 758. Again, it is said that the presumption of validity concerning municipal procedure is not applicable with respect to the p......
  • Olivares v. City of San Antonio
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • December 28, 1972
    ...any interest it might have therein.' The question as to whether a city must respond in damages was not in issue in that case. Bowers v. Machir, 191 S.W. 758 (Tex.Civ.App., Fort Worth, 1916, no writ), is also cited in the dissent. This is a case in which an injunction was sought to require t......
  • Duvall v. City of Dallas, 10755.
    • United States
    • Court of Appeals of Texas
    • April 19, 1930
    ...v. Sullivan, 18 Tex. Civ. App. 488, 46 S. W. 288, 290; Stevens v. City of Dublin (Tex. Civ. App.) 169 S. W. 188, 190; Bowers v. Machir et al. (Tex. Civ. App.) 191 S. W. 758; Dallas Cotton Mills v. Industrial Co. (Tex. Com. App.) 296 S. W. 503, 505; Bowers v. City of Taylor (Tex. Com. App.) ......
  • Tall Timbers Corp. v. Anderson, 13625
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • December 8, 1960
    ...did not consider that the line separating the disputed strip from the acknowledged street was worthy of comment. In Bowers v. Machir, Tex.Civ.App., 191 S.W. 758, the Court apparently ignored the closed lines of a 20 foot alley. The cases of Duggan v. Buckner, Tex.Civ.App., 155 S.W.2d 661, r......
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