City of Houston v. Lawyers Trust Co.

• Decision Date: 01 June 1961
• Docket Number: No. 3859,3859
• Citation: 348 S.W.2d 26
• Parties: CITY OF HOUSTON, Appellant, v. LAWYERS TRUST COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 26

348 S.W.2d 26

CITY OF HOUSTON, Appellant, v. LAWYERS TRUST COMPANY, Appellee.

No. 3859.

Court of Civil Appeals of Texas, Waco.

June 1, 1961.

Rehearing Denied June 29, 1961.

R. H. Burks, Homer T. Bouldin, Houston, for appellant.

Red, Kemp & Fahey, Houston, J. R. Lewis, Tyler, for appellee.

TIREY, Justice.

This action is one in trespass to try title. The City of Houston filed a plea of not guilty. At the close of plaintiff's evidence the City presented its motion for instructed verdict and again at the conclusion of all the evidence, and it was overruled. The court submitted two issues to the jury, they are, absent the burden of proof clause, substantially: (1) Do you find that the land involved in this lawsuit had ceased to be used for park purposes on or after August 12, 1951? to which the jury answered: 'We do.' (2) Do you find that the land and property in question was abandoned as a public park on or after August 12, 1951? to which the jury answered: 'We do.' The City seasonably filed its motion to disregard and set aside the answers of the jury to the issues and also its motion for judgment non obstante veredicto, each of which was overruled, and the court entered judgment for appellee. The court granted separate motions of plaintiff and defendant to instruct a verdict against defendant, Mrs. Anderson, as administratrix of the estate of R. N. Ferguson, deceased, and there is no exception or appeal from the order. The City seasonably filed its motion for a new trial, and it being overruled perfected its appeal to the Houston court, and the cause is here on transfer.

Point one is to the effect that the court erred in overruling the City's motion for instructed verdict because: (a) There is no evidence; (b) Insufficient evidence; (c) That neither the lumber company nor its assigns gave notices of re-entry; (d) That the lumber company waived any conditional limitation, or condition subsequent, or covenant for failure of the city to use the land for park purposes, and had no right to re-enter the property, and the court erred in holding that the dedication for park purposes had terminated, and decreeing that the property revert to the lumber company or to appellee.

Point two is to the effect that the court erred in overruling appellant's motion for instructed verdict because the evidence is positive and uncontradicted that the lumber company dedicated the land for park purposes and filed for record such instrument of dedication and a dedicated map showing the land that was dedicated for park purposes, and because the company subsequently sold lots in the subdivision whereby said dedication became final and irrevocable. $Three and four are to the effect that the court erred in overruling the City's motion for instructed verdict because the evidence is undisputed that the lumber company represented to prospective buyers of land in the subdivision by brochures that the land in question had been dedicated for park purposes and thereby induced the people to buy land in that area and that said dedication became irrevocable as a matter of law; that appellee has no right to judgment that said easement for public park purposes is forfeited or has been forfeited or that said easement has terminated or has reverted to appellee.

Points 30, 31, 32, 33, 34 and 35 are to the effect that the court erred in overruling the City's motion for judgment non obstante veredicto, because there is no evidence in the record to justify the submission of issues one and two, or to support affirmative answers to either of such issues; that the evidence is insufficient to justify the submission of either of such issues or to sustain an affirmative answer of the jury to either of same; that the answer of the jury to each of the issues is so against the great weight and preponderance of the evidence as to be greatly wrong and unjust.

A statement is necessary. The dedication of the property for park purposes was by deed of date August 12, 1926. At the time this deed was filed for record this property was outside of the city limits. We quote the pertinent recital in the deed:

'* * * has platted the same into lots and blocks, to be known as 'Garden Villas', and subject to the revervations hereinafter stated, does by these presents dedicate unto the public for street and alley purposes all streets and alleys in said subdivision and also for the purposes all streets and alleys in said subdivision and also for the purposes indicated, all parks, civic centers, school sites and community places, as shown or indicated on the map or plat thereof, a copy of which is attached hereto and filed for record in the office of the County Clerk of Harris County, Texas. * * * 'If or after the expiration of twenty-five (25) years from date hereof, any tract or tracts dedicated for parks, civic centers, schools or community places as shown on said plat, cease to be used for that purpose or purposes indicated thereon, the fee title to any such tract or tracts shall vest and be in W. T. Carter Lumber & Building Company.'

The evidence is without dispute that Lot 1 of Garden Villas was adequately and highly improved for park purposes, shortly after the dedication, and it was widely and much used by the public generally in Harris County, and in the city for playground, picnics, church socials, and other social events shortly after the dedication and improvement of the property for park purposes, and this park remained in great use for many years. Sometime during the 1930's (the exact time not shown) the park began to be used by people at night in such way that it was objectionable to the residents in that area and that resulted in the lumber company placing a Mr. Ferguson on the property for policing purposes. Ferguson also had other duties to perform in connection with the control of the water and sewer system serving the area, and he was permitted to move on to the property and occupy what was designated the recreation house. Ferguson was not there too long until he began to be arbitrary and contentious with the people who desired to use the park; that he kept vicious dogs; that he kept a horse in the park; that he maintained a garden and his attitude was such that by the middle 1940's he had interfered with the free use of the park to such an extent that the record does not recount any use of the same for park purposes after 1944.

The record shows that the Carter Lumber Company conveyed this property to the Carter Investment Company, Trustee, in 1947, and thereafter, in 1947, the Carter Lumber Company was dissolved; the investment company conveyed the property to appellee on October 15, 1957, and the appellee filed this suit in trespass to try title on February 18, 1959. It is true that Mr. Randolph testified to the effect that he talked to the county commissioner of the precinct in which the subdivision was located concerning spending money to help maintain the park, but that he got no response. Needless to say this would have no effect upon the rights of the City of Houston; that the sale of all the lots in the subdivision had been approximately completed before the Carter Lumber Company was dissolved in 1947.

The City, by ordinance dated December 30, 1949, extended its limits so as to annex the property, and thereafter, in March 1950, by ordinance, the city assumed the responsibility of maintaining park sites and civic centers in the subdivision. We quote Section 1 thereof:

'Section 1: The City of Houston hereby accepts the dedication of the park sites and civic center as shown on said map which is attached hereto, marked Exhibit 'A', and assumes the responsibility for the upkeep, care, maintenance and supervision which the City Council or someone thereunto duly authorized may find to be necessary or proper.'

In January 1950, the acting Director of Parks and Recreation of the City recommended that:

'* * * the City spend about $3,000.00 on the third plot for grading, walks and a few pieces of outside play apparatus which I believe will meet the requirements, contingent of course upon your approval. I made no promises or commitments at the meeting.'

On February 9, 1950, the City Secretary wrote the Acting Director of Parks and Recreation, as follows:

'Attached is copy of your letter of January 31, 1950, on request of Garden Villas Community Association, relative to three park sites in Garden Villas, which has been approved by Mayor Holcombe.

'Mayor Holcombe requestes that you handle this matter to completion and see that the City gets the deeds for the park sites.'

There was tendered in evidence a letter to the Mayor October 26, 1956, entitled 'Request for maintenance on property at intersection of Santa Fe and Haywood Streets,' (property in question) and this letter further stated that the Legal Department was requested on July 24, 1956, to give a legal opinion as to the status and ownership or the property that was known as Garden Villas Park:

'There has been some question as to whether or not it's city park property, and until this fact is known we would hesitate to provide any maintenance. We will, therefore, be glad to provide such maintenance as is necessary when we receive this information and opinion from the Legal Department.'

A letter from the Department dated September 6, 1957, stated:

'I believe the area that you refer to has been in the past questionable as to whether or not it is a dedicated park. There is at present a relative on this property and on several occasions when we had attempted to clear this he had ordered us off and strongly claims that the property does not belong to the City. As I have been told, the former owners donated this property to the County for park purposes with some provision that he would be allowed to live in the existing house for life. Since that time, of course, this area has been annexed by the City but he has never relinquished his rights and considered this City or public...