City of Mission v. Popplewell

• Decision Date: 24 October 1956
• Docket Number: No. A-5797,A-5797
• Citation: 156 Tex. 269,294 S.W.2d 712
• Parties: CITY OF MISSION, Petitioner, v. Beulah POPPLEWELL, Respondent.
• Court: Texas Supreme Court

Page 712

294 S.W.2d 712

156 Tex. 269

CITY OF MISSION, Petitioner, v. Beulah POPPLEWELL, Respondent.

No. A-5797.

Supreme Court of Texas.

Oct. 24, 1956.

Rehearing Denied Nov. 21, 1956.

Rankin, Kilgore & Cherry, Edinburg, for petitioner.

Ewers, Cox & Toothaker, William E. York, J. Perry Jones and Charles Elick, McAllen, for respondent.

McCALL, Justice.

Respondent, Beulah Popplewell, owned a one-acre tract of land within the City of Mission, Texas. She erected a fence along the western boundary of the tract. The City of Mission, petitioner herein, claimed that twenty-foot alley had been dedicated through such tract by respondent's predecessor in title, and that the fence blocked this alley. Upon respondent's refusal to remove the fence, the City brought suit for a mandatory injunction to require respondent to remove the fence across the alley and for a permanent injunction enjoining respondent from obstructing the alley in the future. Respondent excepted to the City's petition on the ground that the suit involved title to realty which could not be adjudicated in a suit for injunction, and that the City's exclusive remedy was by trespass to try title suit. Respondent also filed a general denial, alleged that she owned the fee simple title in the tract, and contended that the dedication of the alley was void for several reasons.

The trial court granted the injunction, but the Court of Civil Appeals reversed and remanded the cause, holding that respondent's exception to the City's petition should have been sustained. 288 S.W.2d 200. Thus the question on appeal is whether suit for injunction is a permissible remedy under the facts of this case.

In a broad sense this suit does involve the title of realty. It comes within Section 8 of Article V of the Texas Constitution, Vernon's Ann.St., which gives the district court jurisdiction 'of all suits for the trial of title to land'. Such was the holding of this Court in Blair v. Archer County, 145 Tex. 102, 195 S.W.2d 348, in which it was held that a suit to enjoin the fencing of an alley could not be brought in a county court, and the contention that title to realty was only incidentally involved was rejected.

However, in the recent case of Davidson v. Gelling, 153 Tex. 56, 263 S.W.2d 940, 943 this Court held that a suit to enjoin the closing of a road did not involve the fee title to the realty. In that suit Davidson, the fee owner, attempted to close a road which had been dedicated to the use of the public by his predecessor in title. Gelling, an adjoining property owner, claimed an easement in such road and procured a judgment enjoining closing of the road. Later Davidson brought a trespass to try title action against Gelling for the strip of land in the road. In the trial Gelling suffered a take nothing judgment, on the ground that the injunction judgment was res adjudicata of the issue of any title to the road. This Court reformed the judgment of the trial court so that it would not deprive Gelling of the fee title to the road. The Court held that the injunction suit merely determined that the strip was subject to an easement and the issue of fee title was irrelevant, even though Davidson had pleaded his fee title and tried to prove it. It was stated in the opinion: 'One cannot thus make an issue of something irrelevant to a disposition of the case. Proof of ownership of the fee interest by the defendants without more would not defeat the plaintiffs' claim of easement arising from the dedication, nor would failure of the defendants to make such proof entail a judgment for the plaintiffs in the absence of the dedication.' It was held that in such a case where the 'purely defensive pleadings of the defendant include a statement of fee ownership not material to a disposition of the case', the judgment does not affect the fee title.

The same holding is implicit in the recent decision of McCarver v. City of Corpus Christi, Tex., 284 S.W.2d 142, 143, involving a suit by the City to enjoin obstruction of an alley. There it was said: 'In this suit to remove obstruction the City as plaintiff had the burden of establishing as a fact the legal existence of the alley at the time of filing suit. This it has failed to do and therefore must fail in its suit. This is not a title suit, so we do not pass upon the question of title and specifically hold that no question of title is adjudicated in this case.'

In view of these decisions that a suit to remove an obstruction in an alley does not involve the fee title to the land and that such fee title is irrelevant even if pleaded, the contention that the action of trespass to try title is the exclusive remedy in such cases seems unsound.

The respondent relies upon the cases cited by the Court of Civil Appeals: Walker v. Haley, Tex.Civ.App., 147 S.W. 360; West v. Culpepper, Tex.Civ.App., 159 S.W.2d 961; Bruce v. Moore, Tex.Civ.App., 277 S.W.2d 199. As stated by the Court of Civil Appeals all these cases are boundary disputes between adjacent landowners and the issue of ownership of the fee was determinative in each case. The courts properly held that this issue could not be decided by a suit to enjoin the erection of a fence but had to be adjudicated in a trespass to try title action. Since in the present case ownership of the fee is not determinative of the existence of the easement, the cited cases are not applicable.

Furthermore, while a trespass to try title action has occasionally been used by a city to remove an obstruction in a street or alley, City of Tyler v. Boyette, 43 Tex.Civ.App. 573, 96 S.W. 935, it is doubtful whether it is an appropriate action for such purpose. The plaintiff in a trespass to try title action must allege and prove the right to present possession of the land. Rule 783, Texas Rules of Civil Procedure; Stephens v. Motl, 82 Tex. 81, 18 S.W. 99; City of El Paso v. Long, Tex.Civ.App., 209 S.W.2d 950 (er. ref.), 41A Tex.Jur. 532. The owner of an ordinary easement does not have such a possessory right and the remedy is not available to him. Gillett v. Van Horne, Tex.Civ.App., 36 S.W.2d 305 (er. dism.); Cornick v. Arthur, 31 Tex.Civ.App. 579, 73 S.W. 410; 15B Tex.Jur. 310; 41A Tex.Jur. 517. Injunction is a proper remedy. Gillett v. Van Horne, supra.

This Court has also held that the legal title to city streets belongs to the state, which has full control and authority over them, and the cities exercise only such control and authority as has been delegated to them by the Home Rule Amendment to the Texas Constitution, art. 11, § 5, or by the legislature. West v. City of Waco, 116 Tex. 472, 294 S.W. 832; City of San Antonio v. Fetzer, Tex.Civ.App., 241 S.W. 1034; 30A Tex.Jur. 434; 39 Tex.Jur. 603. In City of Beaumont v. Gulf States Utilities Co., Tex.Civ.App., 163 S.W.2d 426, (429 er. ref. w. o. m.), the Court of Civil Appeals quoted with approval from McQuillin on Municipal Corporations, 2d Ed., par. 2902, page 12: "Courts everywhere decline to recognize that the city possesses any property rights in the streets, although they may be a source of profit to the municipality. Their interest is exclusively public juris, and is in any respect wholly unlike property of the private corporation which is held or its own benefit and used for its private gain and advantage."

The city controls the streets as trustee for the public. It has no proprietary title nor right to exclusive possession. Its right of control is restricted by its trusteeship. It has the duty to maintain the streets and keep them open and free of obstruction. It can close a street only in the public interest and even then not over the objection of an abutting property owner with a co-existing private easement therein. Kahn v. City of Houston, Tex.Com.App., 121 Tex. 293, 48 S.W.2d 595; Dallas Cotton Mills v. Industrial Co., Tex.Com.App., 296 S.W. 503; Tex.Jur., 603-605.

Thus the interest which a city has in its streets and alleys is unique and legally sui generis. It has no proprietary title but exercises many of the rights of title on behalf of the public. It is less than the private easement in that the city cannot recover damages for the obstruction of a street. It is more than a private easement in that the control of the street is greater. The control is so exclusive that the city is liable to the public for failure to properly maintain the street as a safe way of travel. 39 Tex.Jur. 658-661, Streets, Sec. 104. Yet the control does not allow the city to exclude the fee owner from using the street in any manner which does not interfere with the use by the public. 39 Tex.Jur. 588. This interest has been regarded as sufficient to qualify as a possessory right which will support an action in trespass to try title. 18 Am.Jur. 18, Ejectment, Sec. 16. However, a judgment for the city for 'title or possession, or both, as the case may be, of such premises' as prescribed in Rule 804, T.R.C.P., does not seem applicable, and the city certainly cannot recover damages under Rule 805. The only applicable remedy is one that is regarded as ancillary to the action in trespass to try title, to wit, the injunction. There thus seems to be no good...