City of Houston v. Scanlan

• Decision Date: 01 April 1931
• Docket Number: No. 5484.,5484.
• Citation: 37 S.W.2d 718
• Parties: CITY OF HOUSTON v. SCANLAN et al.
• Court: Texas Supreme Court

37 S.W.2d 718

CITY OF HOUSTON v. SCANLAN et al.

No. 5484.

Supreme Court of Texas.

April 1, 1931.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Kate Scanlan and others against City of Houston, in which defendant filed a cross-action. Judgment for plaintiff for part of relief claimed was affirmed by the Court of Civil Appeals [16 S.W.(2d) 550], and defendant brings error.

Affirmed.

See also 300 S. W. 220.

Sam Neathery, City Atty., William D. Orem, Asst. City Atty., John H. Freeman, Fulbright, Crooker & Freeman, Sewall Myer, J. H. Painter, Nat H. Davis, and Sidney Benbow, all of Houston, for plaintiff in error.

Walter F. Brown, of Houston, for defendants in error.

RYAN, C.

This suit was brought by Kate Scanlan and her three sisters against the San Jacinto Construction Company and the city of Houston for damages and to enjoin the defendants from widening and paving the street along and beside block 404 in the city of Houston, which block belongs to the plaintiffs; they claimed title to the strip of land between the curb line and the fence on the southwest side of Calhoun avenue between Main and Fannin streets, being the strip of land desired by the city to widen and pave that street.

The city, by way of cross-action, asserted title to the strip in controversy by dedication, prescription, and limitations; there were also reciprocal claims for damages between the opposing parties and a cross-action for such a recovery by the construction company over against the city, but all these were denied, and no complaint upon that score has been presented on appeal, which was by the city alone.

The trial court submitted two special issues to a jury relating to the Scanlans' claim for damages which were answered unfavorably to them.

The trial court refused to submit the city's cross-action and claim to said strip of land, by dedication, prescription, or limitations, because, as stated by the court in its judgment, "the city failed to introduce and offer sufficient evidence to justify the submission of its claim to the property involved in this suit, to the jury * * * and therefore decided against the city upon such cross-action and pleas."

Judgment was rendered in favor of the defendants upon the question of damages, but for the plaintiffs perpetually enjoining the defendants from destroying the grass, herbage, and trees on the property in question, southwest of the southwest curb line as it existed at the time the defendants began the paving of Calhoun avenue, and from placing any hard surface pavement for vehicular traffic southwest of said curb line on plaintiff's property.

The city of Houston alone appealed, resulting in an affirmance of the trial court's judgment, by the Court of Civil Appeals. 16 S.W. (2d) 550.

It was contended by the city that there was sufficient evidence to create an issue of fact as to the city's defenses, which should have been submitted to the jury.

A majority of the Court of Civil Appeals held that although the city objected to the court's charge because the issue of dedication was not submitted, it did not make written request for such submission according to the provisions of articles 2185 and 2190, Rev. Stat. 1925, and therefore the question was not properly raised.

As concerns limitations and prescription, there was neither written request for, nor objection to the charge omitting, the submission of either, and those matters therefore passed out of the case, before the Court of Civil Appeals.

However, that court did hold "were it proper to pass on the sufficiency of the evidence to warrant the submission of an issue as to whether the city had acquired by dedication the right claimed, a majority of the court would hold that it was."

The failure to submit any issue on dedication was an evidence that the trial court was of the opinion that the evidence did not raise the issue. The city objected to the court's charge because it failed to submit such an issue, the objection being based on the ground that the evidence did raise that issue. The trial court overruled the objection, thus indicating the opinion that the evidence did not raise the issue.

The city's application for writ of error here is based upon the single proposition that "it is not necessary to request in writing the submission of an issue, where the party has by his objection and written exception to the charge called the court's attention to the failure to submit this issue to the jury."

Before an issue should be submitted, there must be some evidence to sustain the pleading raising such issue, and if there be no evidence adduced, the issue should not be submitted.

It appears from the uncontroverted evidence in the case that Joseph R. Morris owned block 404 in 1870; he conveyed it to T. W. House in February, 1883; House conveyed to T. H. Scanlan in March, 1883.

Plaintiffs below are the heirs of T. H. Scanlan (now deceased), and he and they have occupied said property ever since such purchase from House in 1883.

Morris placed a fence around the block and planted a row of trees along the north, or Calhoun street, side of the property. This fence remained until April, 1893, when it was taken down by the Scanlans and replaced by a...