City of Pearland v. Young
| Decision Date | 12 March 1970 |
| Docket Number | No. 7116,7116 |
| Citation | 452 S.W.2d 767 |
| Parties | CITY OF PEARLAND, Appellant, v. James C. YOUNG et al., Appellees. |
| Court | Texas Court of Appeals |
Jack Harrison, Alvin, Thomas J. Graham, Houston, for appellant.
William W. McNeal, Alvin, for appellees.
The City appeals from a judgment based upon jury findings, awarding Young $15,000.00 as the value of certain water lines, $2,963.45 for water sold through the lines during the course of the litigation, and $1,560.00 as the value of the water meters used in the system. The contract between the parties is set out in the opinion written on the prior appeal of the case. Young v. City of Pearland, 425 S.W.2d 391, 392 (). The parties will be designated as 'City' and 'Young' respectively.
On the prior appeal by Young, Justice Coleman set out a letter written by the City Secretary to Young wherein the City notified him of the acceptance of the option created by the contract. (See p. 393 of the reported opinion.) Upon the trial of this cause, the parties stipulated that Young never received the letter mentioned, a factor which complicates our ultimate disposition of the case, particularly when we come to consider the doctrine of the law of the case. Additionally, for whatever it may be worth, the jury declined to find that City gave Young 30 days' notice in writing within a reasonable time after it had developed its own distribution system. Another issue, which the jury answered negatively, asked if the original petition of the City gave Young 'written notice of the City's desire to acquire possession and ownership of the water lines without costs, the meters at $40.00 each, and not to acquire the water well, etc.'
After the mandate had been returned following the former appeal, Young served notice upon the City that he had elected to rescind the option granted in the original contract and demanded the return to him of the distribution system which the City had been operating during the pendency of the suit. City declined to return to Young possession of the water lines and Young's cross action for the value thereof followed.
Some 38 special issues were submitted to the jury, many of which have no conceivable bearing upon any ultimate issue in the case or the outcome of the litigation. We do, however, comment upon several of the issues which have materiality.
By Special Issues Nos. 23A and 23B, the jury found that at the time Young installed the water lines he 'dedicated those lines to the public for the purpose of furnishing water to Westminister Subdivision' and the purchasers of the lots relied upon 'such dedication in purchasing lots therein.' The court, upon proper motion, set aside these findings and rendered judgment for Young upon the remaining findings.
The greater part of the City's brief upon the appeal is addressed to the failure of the court to enter judgment in its behalf upon the theory of dedication, with its principal reliance being placed upon City of Houston v. Lakewood Estates, Inc., 381 S.W.2d 697 (Houston Tex.Civ.App., 1964, no writ). 1
We have carefully considered both opinions of Justice Bell on this case and have no quarrel with either decision. Indeed, he foresaw, in his first opinion, the possibility of additional testimony being introduced on the dedication theory; and, when such was forthcoming, his second decision upheld the finding of no dedication. The underlying and controlling facts stated in both opinions in Lakewood Estates are absent here. We have had occasion, recently, to go into the question of implied dedication at some length and do not find it necessary to repeat the citations found in Eastex Wildlife Conservation Association v. Jasper, Newton, Hardin and Tyler County Dog and Wildlife Protective Association, 450 S.W.2d 904, p. 911, et seq. (opinion delivered February 5, 1970), to which we refer. We even cited the Seaway Case (Seaway Company, Inc. v. Attorney General of Texas, Tex.Civ.App., 375 S.W.2d 923) mentioned by Justice Bell on page 701 of the first opinion in Lakewood Estates. (Eastex Case, p. 912.)
Contrary to the situation prevailing in Lakewood Estates, Young had granted City an option to purchase his water system. This option, in Justice Coleman's language, was:
The City is in no position to demand specific performance of this contract and at the same time contend that Young did not own the lines because of his implied dedication to the owners of lots in the subdivision. Young's counsel suggests that the City is estopped to argue dedication to the public in an action to enforce specific performance of a contract to convey the system, citing Krause v. City of El Paso, 101 Tex. 211, 106 S.W. 121 (1907).
The argument so made is beguiling and one not without legal support. Here, the City, declaring on a contract which would have allowed it to acquire The entire system at a nominal cost, attempts to avoid its liability by asserting that the ownership of the water lines is not in Young but in the owners of lots in the subdivision. City, in effect, does not recognize the contract in its entirety (as was required under Justice Coleman's prior opinion), but seeks to divide it into three parts: (a) the water lines which it claimed belonged to third parties, not to Young: (b) the meters which it admitted belonged to Young and for which it was willing to pay; and (c) the well and pumps, etc., which it claimed it did not want at any price. The position is untenable, factually and legally.
In the prior opinion, it was held that the contract between the parties was indivisible. (425 S.W.2d at p. 395.) The City was not authorized to pick and choose which parts of the system it would take (the lines and the meters) and discard that which it did not want, i.e., the well, pump, etc. City could prevail only by recognizing Young's offer as a unit, accepting the offer therein contained, and tendering performance of its entire obligation under the contract as a single undertaking.
In Guadalupe-Blanco River Authority v. City of San Antonio, 145 Tex. 611, 200 S.W.2d 989, 997 (1947), Chief Justice Alexander had this to say:
See also: Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892, 895 (1960); City of Nederland v. Callihan, 299 S.W.2d 380, 387 (Beaumont Tex.Civ.App., 1957, error ref. n.r.e.); T. E. Moor & Co. v. Hardcastle, 421 S.W.2d 126, 131 (Beaumont Tex.Civ.App., 1967, error ref. n.r.e.).
In passing upon the points with reference to dedication In a case wherein the trial court has granted a motion for judgment non obstante veredicto, we consider only the testimony in the most favorable light to the City and every reasonable intendment deducible from the evidence is to be indulged in its favor. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952). See also Parker v. Seligman & Latz, Inc., 429 S.W.2d 159, 161 (Houston Tex.14th Civ.App., 1968, no writ), wherein the authorities are collated. Having so reviewed the evidence, we find, as did the trial court, that there was no evidence of probative force supporting the jury findings with reference to dedication. Additionally, as we have pointed out, City cannot maintain the suit upon the contract, seeking specific performance from Young while contending simultaneously that the lines did not belong to him, but to the purchasers of the lots. So holding, City's points one through four are overruled.
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