City of Dallas v. Etheridge

• Decision Date: 10 December 1952
• Docket Number: No. A-3607,A-3607
• Citation: 152 Tex. 9,253 S.W.2d 640
• Parties: CITY OF DALLAS v. ETHERIDGE.
• Court: Texas Supreme Court

Page 640

253 S.W.2d 640

152 Tex. 9

CITY OF DALLAS v. ETHERIDGE.

No. A-3607.

Supreme Court of Texas.

Dec. 10, 1952.

Rehearing Denied Jan. 14, 1953.

H. P. Kucera, City Atty., H. Louis Nichols and Charles C. Wells, Asst. City Attys., Dallas, for petitioner.

Odeneal, Herndon & Franklin, Dallas, for respondent.

CALVERT, Justice.

I. G. Etheridge, as plaintiff, instituted this statutory trespass to try title action against the City of Dallas as defendant. Trial was to the court and fee title to the property was found to be in the plaintiff but right of possession was adjudged to be in the defendant. The Court of Civil Appeals held that the plaintiff was entitled, as a matter of law, to recover possession of all of the land involved except such part as the evidence might show had been used for a sufficient length of time and under such circumstances as to vest in the public a prescriptive right to the continued use of the same for street purposes. The judgment of the trial court was reversed and the cause was remanded to the trial court for the limited purpose of permitting the defendant to establish, if it could, the identity of that part used for street purposes and a prescriptive right thereto. 246 S.W.2d 692.

The claim of the City of Dallas to the right of possession of the greater part of the property involved in this suit arises out of a conveyance, dated January 29, 1929, from City and County of Dallas Levee Improvement District, plaintiff's predecessor in title and then owner thereof. That conveyance reads in part as follows:

'* * * That the City and County of Dallas Levee Improvement District * * * does hereby grant unto the said City of Dallas the free and uninterrupted use of that certain tract * * *. The use and occupancy of said tract of land is granted upon the following conditions, to wit:

'(1) That the said City of Dallas shall use said land for park purposes only.

'(2) That no building or other improvements shall be erected upon said tract of land within fifty (50) feet of the toe of the levee now constructed along the east side thereof.

'(3) That no act or thing shall be done or permitted to be done in or about the premises which will in anywise impair the safety or usefulness of the levee on the east of said tract of land.

'(4) That the City and County of Dallas Levee Improvement District shall have the right of ingress and egress at any and all times to all of said tract for the purpose of maintaining said levee.

'(5) All of the above provisions are made a part of the consideration for this grant, and a violation of any of them shall, at the option of said City and County of Dallas Levee Improvement District, terminate this grant or agreement * * *.'

Our disposition of this phase of the case rests upon conclusions we have reached as follows: 1. The condition contained in the foregoing conveyance, that the land should be used for park purposes only, is a condition subsequent and not a condition precedent. 2. The building by the City of a public road through the property was a violation of the condition. 3. The four year statute of limitations was not available to the City as a defense to plaintiff's suit to recover possession of the property. 4. There is in the record no evidence of probative force to support a judgment in favor of the City based on the ten year statute of limitations and adverse possession. We will now note briefly some of the reasons for our conclusions.

1. The general rule that instruments of conveyance should be interpreted so as to ascertain and effectuate the intention of the parties is applicable in determining whether a condition is a condition precedent or a condition subsequent. Hudson v. Caffey, Tex.Civ.App., 179 S.W.2d 1017 (writ refused); 12 Tex.Jur. § 83, p. 126; 19 Am.Jur., § 66, p. 528.

The opinion of the Court of Civil Appeals correctly states the distinction between the two types of conditions in the following language: 'A condition precedent in an instrument affecting the title to land is said to be one which must take place before the estate can vest or become enlarged, while a condition subsequent is one which operates upon an estate already created and vested, the latter rendering the estate so created and vested liable to be defeated. Wiederanders v. State, 64 Tex. 133; 17 Tex.Jur., p. 109, Sec. 9.' (246 S.W.2d 694.) Analyzing the instrument here in the light of the foregoing rules we find no peculiar provision or language contained therein indicating an intention that the land should be developed for use as a park before the estate conveyed would vest. On the contrary, the language of paragraph (5) of the conveyance indicates an intention on the part of the grantor that the condition contained in paragraph (1) should fall in the same general category as the conditions and restrictions contained in paragraphs (2), (3), and (4), and all of these conditions and restrictions clearly contemplated a present vesting of the estate conveyed. These very provisions of the conveyance will distinguish this case from the case of Spinks v. First Christian Church of Vera, Tex.Com.App., 273 S.W. 815 on which the plaintiff relies in seeking to have the condition held to be a condition precedent. Moreover, if the language of the conveyance left us in doubt it would be our duty to hold that it imposed a condition subsequent rather than a condition precedent. Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318. In the case of Bell County v. Alexander, 22 Tex. 350, 351, at page 364 it is said: 'And it is well settled, that, if the act does not necessarily precede the vesting of the estate, but may accompany or follow it; if this is to be collected from the whole will, the condition is subsequent.'

2. In 1929 or 1930 the City of Dallas cut a public road through the property and since that time has kept the road graded and graveled and otherwise suited to public use. There is no evidence in the record that this road was built to further the public's use and enjoyment of the property as a park. On the contrary the evidence in the record shows conclusively that such was not the purpose of the road. The use of a part of the property as a public road under the facts shown was inconsistent with the purpose to which the City was required to devote the property and was a breach of the condition of the easement. El Paso Union Passenger Depot Co. v. Look, Tex.Civ.App., 201 S.W. 714; affirmed, Tex.Com.App., 228 S.W. 917; 39 Amer.Jur., p. 821, sec. 25; 18 A.L.R. 1248; 63 A.L.R. 486; 144 A.L.R. 492.

3. When a part of the property was devoted by the City to road purposes the grantor's right to terminate the grant and to recover possession of the land arose immediately. No steps were taken by the Levee District to reenter or to recover possession of the land by suit during its ownship of the fee which continued until its conveyance thereof to the plaintiff Etheridge on October 1, 1944. Etheridge reentered and took possession of the property in April 1945. Based on the failure of the Levee District to declare a forfeiture of the easement or to sue during its ownership of the fee the City contends that the right to terminate the easement and recover possession of the premises was barred by the four year statute of limitations, or, in the alternative, by the ten year statute of limitations.

In considering the defense of the four year statute it must be remembered that such statute of limitations do not affect the substantive rights of parties; they merely bar the remedy by which one party seeks to enforce his substantive rights. American Nat. Ins. Co. v. Hicks, Tex.Com.App., 35 S.W.2d 128; John F. Grant Lbr. Co. v. Jones, Tex.Civ.App., 151 S.W.2d 944, affirmed 139 Tex. 647, 164 S.W.2d 1019. So it is that in this case the issue is not whenther the plaintiff's right to terminate the easement for condition broken is barred but whether the right of the plaintiff to obtain relief by way of suit is barred. That issue is to be resolved by the wording of the statute and by the nature of the suit.

Article 5529, V.A.C.S. provides: 'Every action others than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years * * *.' But the provisions of this statute do not bar the relief sought in this case because this suit is 'one for the recovery of real estate.' When the City violated the condition subsequent and Etheridge as successor to the rights of the Levee District exercised his option to terminate the grant, the easement for park purposes was defeated and Etheridge was vested with the original fee simple estate of the grantor, freed of the burden of the easement, just as though no such easement had been conveyed. Alford v....