City of Aransas Pass v. Minter, 8520.

• Citation: 34 S.W.2d 1113
• Decision Date: 24 December 1930
• Docket Number: No. 8520.,8520.
• Parties: CITY OF ARANSAS PASS et al. v. MINTER et al.
• Court: Court of Appeals of Texas

34 S.W.2d 1113

CITY OF ARANSAS PASS et al. v. MINTER et al.

No. 8520.

Court of Civil Appeals of Texas. San Antonio.

December 24, 1930.

Rehearing Denied February 4, 1931.

Appeal from District Court, San Patricio County; T. M. Cox, Judge.

Action by Byrd L. Minter and others against the City of Aransas Pass and others. Judgment for plaintiffs, and defendants appeal.

Reversed, and injunction dissolved.

See also 21 S.W.(2d) 384.

J. G. Cook, of Sinton, and Tarlton & Lowe, of Corpus Christi, for appellants.

J. D. Todd, of Corpus Christi, for appellees.

SMITH, J.

The city hall of the city of Aransas Pass is located on a corner at the intersection of two of the principal streets of the city. The latter owns a strip of land 15 feet wide along the west side of the city hall. Byrd L. Minter and another own a 50-foot lot adjoining said strip on the west, with a hollow tile store building thereon. In other words, the 15-foot strip of vacant land lies between the city hall on the east and Minter's building and lot on the west. The city council are undertaking to construct a city fire station on the 15-foot strip, and this litigation was instituted by Minter to restrain that undertaking. Upon a hearing the district court granted an injunction for that purpose, and the city and its officials, defendants below, have prosecuted this appeal.

Prior to the transactions here involved, the city of Aransas Pass owned a certain parcel of land cornering upon the intersection of two of the principal streets in the city. The city council decided to erect a city hall upon the corner of this land and to that end entered into a contract with L. Summerall, a building contractor, to construct the building, for a consideration of $3,700, to be paid $2,500 in cash, and the conveyance to him of the west 58 feet of said land. It was further stipulated in the agreement that Summerall should reconvey to the city the east 8 feet of the land so conveyed, with the understanding between the parties that this 8-foot strip and the 7 feet remaining between the city hall site and Summerall's 50 feet should remain open between the properties as a passageway and for general public purposes. This provision was made in view of Summerall's expressed intention of putting a hotel or similar improvement upon the 50-foot lot he was to receive in the transaction. Under this agreement Summerall proceeded with the construction of the city hall upon the corner. In due course the city paid him the $2,500 cash, as agreed, but by consent of the parties the contract was modified to an agreement that instead of conveying any property to Summerall the city was given the privilege in lieu thereof of selling 50 feet of the 58-foot frontage and paying Summerall the balance of $1,200 due him on his contract, in cash. In pursuance of this substitute agreement, the city sold the west 50 feet of the whole tract to F. M. Minter and L. T. Faires for $1,200 in cash, which the city in turn paid over to Summerall in full satisfaction of his rights under said contract, which Summerall thereupon destroyed. Subsequently Minter and Faires sold the 50-foot lot, so acquired, to Byrd L. Minter and G. E. Minter, appellees herein, for a cash consideration of $1,650, and appellees thereafter constructed a one-story hollow tile building upon the 50-foot lot, placing the east wall of said building upon the east line of their lot. By this process a vacant strip 15 feet wide was left between appellees' building and the city hall. The title to the fee in this strip thus remains in the city.

Appellees now claim, in effect, that the understanding between the city and Summerall amounted to the conveyance to the latter of a surface easement over said 15-foot strip, for the purposes of ingress and egress to and from the adjoining properties, and a passageway for the public, and an obligation upon the city to forever keep said strip open for all said purposes; that this easement, amounting to a covenant, shall run forever with the title to appellees' 50-foot...