City of Dallas v. Gibbs

• Decision Date: 16 October 1901
• Citation: 65 S.W. 81
• Parties: CITY OF DALLAS v. GIBBS et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

65 S.W. 81

CITY OF DALLAS v. GIBBS et al.¹

Court of Civil Appeals of Texas.

October 16, 1901.

Appeal from district court, Dallas county; T. F. Nash, Judge.

Action by S. A. Gibbs and others against the city of Dallas. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

W. T. Henry and Jas. J. Collins, for appellant. W. A. Kemp and Edw. Gray, for appellees.

FLY, J.

This suit was instituted by Mrs. S. A. Gibbs, joined by her husband, Barnett Gibbs, to recover from the city of Dallas a strip of land 80 feet wide and 1,000 feet long in that city. The cause was tried by the court, and judgment rendered for appellees. It was established by the evidence that on May 29, 1888, the parents of Mrs. Gibbs, now sole heir, conveyed to the city of Dallas a certain strip of land lying between Town Branch and Mill creek for the extension of Austin street, which at that time only reached Town Branch. The extension was crossed by the right of way of the Gulf, Colorado & Santa Fé Railway Company. The city of Dallas immediately opened up the extension of Austin street as far as the right of way of the railroad company, as well as land dedicated for Lamar street in the same deed, but did not open up that portion of the land dedicated for Austin street lying between the railroad right of way and Mill creek; and that is the land now in controversy. Austin street is opened up and kept in repair not only up to the right of way, but also beyond Mill creek, leaving a strip of land 1,000 feet long between the right of way and the creek which has never been worked by the city. A portion of the strip has been fenced by an adjacent owner, and two shanties have been erected by negroes on other parts of it. It has not been used as a street. On the same day that the dedicatory deed was made to appellant, a deed was made by the same grantors to the Rapid Transit Company of land bordering on the land dedicated, and it is in that deed recognized as a street. After the dedicatory deed was executed, a report of a committee recommending the opening of the street when the deed was delivered to the mayor was passed by the common council of the city of Dallas, and in the "block books," which were composed of plats of the various blocks and subdivisions of the city, and which were compiled by experts employed by the city council, and which were in use in making assessments of taxes for the city, the strip of land in controversy was shown to be a part of Austin street. The deed executed by Sickles and wife to appellant made an express dedication of the land in controversy to the city for street purposes, and there was a formal acceptance of the conveyance upon the part of the city, and the only question presented is, does the land revert to the heirs of the grantors by a failure of the city to use it, 13 years having elapsed since the deed was executed? Several weeks before the deed was executed by Sickles, he had written a letter to the mayor and council of Dallas, in which he said: "I will extend Austin street from Town Branch to Mill creek, 80 feet wide, for the use of the public, provided the city will put it in such condition that the people from the country and city can use it without interference for the purpose of business and travel." No such condition appears in the deed afterwards made by Sickles, and there is good authority for the proposition that "a condition contained in a prior agreement between the parties, in pursuance of which the deed is made, but not expressed or referred to in the deed, does not bind the grantee." Jones, Real Prop. & Conv. § 326. This view of the law would eliminate the letter from consideration, but we do not think, if it be considered as entering into and becoming a part of the dedicatory deed, that it can make any difference in the proper decision of the question presented by the record. The city having accepted the dedication of the land, it vested in the public for street purposes, and we are of the opinion that no delay of the city authorities in putting the land to the uses for which it was dedicated can deprive the people of their rights in the street. We think this proposition is sustained by high authority, which will be briefly reviewed. In the case of Barclay v. Howell, 6 Pet. 498, 8 L. Ed. 477, in which suit had been instituted to recover land dedicated to street purposes in the city of Pittsburg, Pa., on the ground of nonuser, the court said: "The right was not necessarily connected with the use within a limited period, as no such condition appears to have been imposed at the time it was granted. * * * It was not essential for the city to show that the entire slip of land referred to had been used as a street, but it was essential that it had been dedicated as such. * * * If this ground had been dedicated for a particular purpose, and the city authorities had appropriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery to compel a specific execution of the trust by restraining the corporation, or by causing the removal of obstructions. But even in such a case, the property dedicated would not revert to the original owner. The use would still remain in the public, limited only by the conditions imposed in the...