City of Athens v. Andrews

• Decision Date: 09 June 1950
• Docket Number: No. 14229,14229
• Citation: 231 S.W.2d 928
• Parties: CITY OF ATHENS et al. v. ANDREWS.
• Court: Texas Court of Appeals

Page 928

231 S.W.2d 928

CITY OF ATHENS et al. v. ANDREWS.

No. 14229.

Court of Civil Appeals of Texas, Dallas.

June 9, 1950.

Rehearing Denied July 14, 1950.

Justice, Moore & Justice, Athens, for appellants.

J. S. Simkins, Corsicana, and Sam Holland, Athens, for appellee.

BOND, Chief Justice.

M. C. Andrews, appellee herein, as plaintiff, instituted this suit in a District Court of Henderson County against L. B. Thornton and wife Athlee Thornton, Wm. A Stegall, County of Henderson and members of the Commissioners' Court of said County, and City of Athens, Texas and its Commissioners, in trespass to try title to a narrow strip of land between the south line of a road reservation designated in the record as 'Old Highway 31' or 'Athens-Malakoff Road' and the north line of New State Highway 31; and for one-half-30 feet wide-of the Old Highway running east and west with the above narrow strip.

The trial was to a jury, over objections of defendants; and, on its findings which we think are uncontroverted, there exists a narrow strip, 3.6 feet wide at the west end and 7.5 feet wide at the east end, approximately 160 feet long, located north of and adjacent to the north line of the New State Highway 31. The trial court, over defendants' exception and motion for judgment urged at the conclusion of the evidence and motion non obstante veredicto (both overruled), entered judgment for the plaintiff to all right, title and possession of the aforesaid narrow strip of land; and all right, title and interest in that portion of the old Athens-Malakoff Road lying south of the center line thereof (30 feet) which abuts on the north side of the narrow strip, approximately 160 feet in length; subject, however, 'to the right of abutting property owners to the North and the public in general to use said portion of said roadway as a passageway, so long as they elect to do so.' The County of Henderson and City of Athens appealed.

In 1899 a 28-acre tract of land out of the Thos. Parmer Survey in Henderson County, of which the land in controversy is a part, was deeded to J. I. Richardson; and the record here shows that Mr. Richardson subdivided the land into small tracts of one, one and a half, and two acres, each tract abutting on the north and south lines of the old Athens-Malakoff Road; and it is agreed by the parties hereto that Mr. Richardson is the common source of title to the tracts of land in controversy. A substantial reproduction of the map relating to the land in controversy is here inserted.

From the record and map, as filed, the property owners to the north, including defendants Thornton and Stegall, owned land abutting the Old Highway. The City of Athens maintains water-mains and other utilities over and under the surface, and the property owners as well as the public generally use the road. In 1908 J. L. Ruff conveyed to Ben Greer (appellee's immedate grantor) about one acre of land described as follows: 'Beginning at the N.W. corner of Millard Stirman (Coy Elledge on map) 1 1/2 acre lot. Thence South 89 vrs. to S.W. corner of said Stirman lot. Thence West 63.4 vrs. to stake for corner. Thence North 89 vrs. Thence East 63.4 vrs. to the beginning.' In 1929 Ben Greer and wife conveyed to the County of Henderson, by deed, a strip across the land for the location of the contemplated New State Highway 31. This deed describes the land as follows: 'Beginning at a stake set for corner of the Greer East line, being also the Bass West line, said stake Engineer's Station No. 36/23 on the center line of Proposed Highway No. 31 West. Thence North 40 feet to a point for corner at the Northeast corner of the right of way herein described. Thence N 89 deg. 27 West along the North line of the right of way, a distance of 160 feet to a point for corner at the Northwest corner of the right of way. Thence Sought along Greer's East (West) Line, same being Greer's West line, passing Engineer's Station No. 37/83 at 40 feet and on a total distance of 80 feet to a point for corner at the Southwest corner of the right of way. Then South 89 deg. 27 E along the South line of the right of way, a distance of 160 feet to a point for corner at the Southeast corner of the right of way. Thence North a distance of 40 feet to the point of beginning, containing by the above description 0.29 acres more or less. The above describes an 80 foot right of way, of which 70 feet lies on the B. J. (Ben) Greer tract of land and 10 feet lies in the present roadway (Old Highway 31) of Highway No. 31 West.' (Italics supplied.) It will be observed here that the northwest corner of the New Highway corners at Greer's west line near the south line of the Old Highway, and the northeast corner at Greer's east line, near south line of the right of way.

In 1930, subsequent to above deed to Henderson County and after the New State Highway had been constructed, Ben Greer and wife conveyed to M. C. Andrews, appellee herein, all of the remaining portion of the land (Lot 3 on the map) which had not been theretofore conveyed to the County. The deed gives specific description of the land by metes and bounds, as in the Greer-Ruff deed first above recited, and then concludes: 'Save and Except: 70 feet deeded by us for right of way purposes through the above described tract of land and being all of the land described in a deed from J. L. Ruff to Ben Greer, dated 11th day of January 1908. A portion of which is now located on the north side and a portion of which is now located on the south side of the New Highway.' (Italics supplied.)

While the suit is one in trespass to try title, its resolute purpose is for interpretation of the deed from Greer and wife to Henderson County and the location of the narrow strip of land within its terms. Manifestly, the specific field notes, course and distance, are insufficient to definitely locate the proposed new Highway 31, in absence of the general recital in the deed that 70 feet of the 80-foot right of way 'lies on' grantor's land and '10 feet lies in the old roadway.' The deed is not ambiguous; the particular description (metes and bounds) is not inconsistent with the general description. It is in evidence, and conceded, that the New Highway was not constructed at date of the deed to the county; and was definitely established and laid out on the grounds at date of the above deed to appellee. Thus we have to turn to the general description recited in the deed in definitely locating the right of way, irrespective of any subsequent placement of the Highway as is shown on the map in aid of the specific description of location for the right of way.

In the case of Gulf Production Co. v. Spears, 125 Tex. 530, 84 S.W.2d 452, 455, where a lease conveyance, immediately after the particular description of the land involved, provided in general terms that it was the intention to include all land owned and claimed by lessor in said survey, Judge Smedley, Commissioner, in opinion adopted by the Supreme Court, said: 'The description by metes and bounds in the lease * * * is both incomplete and incorrect. * * * the land leased is gathered from the entire instrument, and effect is given to the positively stated declaration of the lessor's intention. * * * a general description must be called to aid a doubtful or defective particular description.'

In Cantley v. Gulf Production Co., 135 Tex. 339, 143 S.W.2d 912, 916, the grantor's deed conveyed a 30-foot strip of land abutting on the street or public highway. The description used did not mention a strip between the land conveyed and the public road, and the description did not show the intention to reserve the strip. The Supreme Court quoted with approval 9 Corpus Juris, p. 203, sec. 97; 11 C.J.S., Boundaries, § 35, where it is said: "Where a highway is laid off entirely on the owner's land, running along the margin of his tract, and he afterwards conveys the land, the fee in the whole of the soil of the highway vests in his grantee.' For a discussion of the foregoing rule, see the following authorities: Snoddy v. Bolen, 122 Mo. 479, 24 S.W. 142, 25 S.W. 932, 933, 24 L.R.A. 507; Johnson v. Arnold, 91 Ga. 659, 18 S.E. 370; Taylor v. Armstrong, 24 Ark. 102, 107; Haberman v. Baker, 128 N.Y. 253, 28 N.E. 370, 13 L.R.A. 611; In re Robbins, 34 Minn. 99, 24 N.W. 356, 57 Am.Rep. 40; Cuneo v. Champlin Ref. Co., 178 Okl. 198, 62 P.2d 82; Paine v. Consumers', etc., Co., 6 Cir., 71 F. 626. See also 11 C.J.S., Boundaries, § 35, pp. 580, 581, 582.' The Court then said: 'In view of the public policy of this State with reference to such strips of land, and the presumption that it was the intention of grantors to convey such narrow strip to the grantees...