City of San Antonio v. Grandjean

• Decision Date: 24 June 1897
• Citation: 41 S.W. 477
• Parties: CITY OF SAN ANTONIO v. GRANDJEAN et al.
• Court: Texas Supreme Court

41 S.W. 477

CITY OF SAN ANTONIO v.GRANDJEAN et al.

Supreme Court of Texas.

June 24, 1897.

Error to court of civil appeals of Fourth supreme judicial district.

Trespass to try title by Marie O. Grandjean against the city of San Antonio, Ulysses Grandjean being impleaded by defendant.A judgment for defendant was reversed by the court of civil appeals, and judgment there rendered for plaintiff, and that defendant take nothing against Ulysses Grandjean(38 S. W. 837), and defendant brings error.Judgment of court of civil appeals reversed, and that of district court affirmed.

R. B. Minor and Wm. Aubrey, for plaintiff in error.Leo.Tarleton and Geo. C. Altgelt, for defendants in error.

GAINES, C. J.

This was an action of trespass to try title, brought by Marie O. Grandjean against the city of San Antonio, to recover a parcel of real estate lying in said city, and claimed by the city as a part of a street.The city pleaded not guilty, and specially that at one time the property belonged to the community estate of the plaintiff and Ulysses Grandjean, her husband, and that, in a regular proceeding instituted against the husband for the purpose, the property had been condemned as a street, and the damages assessed and paid.It also pleaded that, after the attempted condemnation and assessment, the plaintiff, with a knowledge of the facts, had received one-half of the sum assessed, Ulysses Grandjean having received the other half.The defendant also made Ulysses Grandjeana party, and, among other things prayed for, asked that, in the event the plaintiff should recover, it should have a judgment against him for the money paid him upon the assessment.The case was tried without a jury, and the court gave judgment for the defendant, without filing conclusions of fact and law.Upon appeal, the court of civil appeals reversed the judgment of the trial court, and rendered judgment for the plaintiff for the property, and for damages and rents, and that the city take nothing by its cross action.The court of civil appeals found as a fact that, at the time of the attempted condemnation, the parcel of land in controversy was the separate property of the plaintiff; whether correctly or not, in the view we take of the case, it is not necessary to determine.It was admitted that the proceedings for the condemnation of the property as a street, as against Ulysses Grandjean, were regular.The value of the property was assessed, upon the condemnation, at $35,000.The treasurer of the city went to the husband, and, in the presence of the wife, tendered the money in payment of the property; but the husband, protesting against the taking of the property, declined to receive the compensation.The wife also declined.There was a conflict in the testimony as to what occurred at the interview, which it is not necessary to discuss in this connection.The report of the commissioners appointed to assess the property was made November 22, 1889.After the tender of the money had been declined, it was placed in bank to the credit of Ulysses Grandjean and Marie O. Grandjean.On the 17th day of December, 1889, Ulysses Grandjean accepted one half of the sum, and gave his receipt therefor.On January 4, 1890, the plaintiff drew her check for the other half, and had it placed to her own credit in the bank, and subsequently, during the same year, drew it out in varying sums, and appropriated it to her own use.In May, 1894, she and her husband were divorced; and in March, 1895, she brought this suit for the recovery of the property.The question is, can she, under these circumstances, reclaim the property?

If the rights of the parties were to be determined upon the principles governing ordinary conveyances of real estate, the separate property of a married woman, the point would not be difficult to resolve.The rule in this state, as in many other jurisdictions, is that the title of a feme covert to her real estate will neither pass nor be affected by her attempted conveyance, except by a deed duly acknowledged by her upon privy examination, and duly certified.Neither a deed not duly acknowledged, nor the reception and appropriation by her of the consideration, nor her subsequent acts showing her acquiescence, nor all these together, will estop her from asserting her title.A contrary rule would enable that to be done indirectly which the statute declares shall be done only by a certain method, and would defeat the purpose of the law.But does the transaction in question stand upon the footing of an ordinary conveyance?The city of San Antonio does not occupy the position of a private person who has contracted for the purchase of the land of a married woman, and who has paid her the consideration, and taken possession of the property.Its attempt was to exercise the power conferred upon it by the state, to take the property for the purpose of a street.The right to take private property for public use is necessary to government, and inheres in every sovereignty.Whatever may be the theory as to the foundation of the right of eminent domain, every one holds his property subject to that right.Enlightened governments provide always for compensation to the owner, and in our state, as in many others, the payment of the compensation is made a condition precedent to the taking.But, at last, it is essentially a right to take, and does not involve the necessity of any grant or conveyance on part of the owner, or of any judicial decree.Statutes for the condemnation of private property to a public use may provide for compulsory conveyance by the owner, or for passing the title by the decree of the tribunal authorized to assess the damages.Such conveyance or decree affords more permanent and satisfactory evidence of the expropriation, but the expropriation is complete without it.For example, when a city to which the power of taking property for a public use has been delegated by the state, through its council, ordains that certain property be taken for a street, and when the compensation has been assessed according to law, or has been agreed upon between the authorities of the city and the owner, and has been paid by the former to the latter, the easement is established, and the title of the owner to that extent extinguished.A private easement, as for a private right of way, even at common law, could only be conveyed by grant; and, besides being an interest in land, it is within the statute of frauds, and must be conveyed in writing.Not so with a public way.The owner of land may dedicate a way over it for the use of the public.No writing is necessary to effect this result.When the owner, by words or acts, has clearly evinced an immediate intention to devote the way permanently to the use of the public, and the offer of dedication has been accepted, however informally, the dedication is complete, and he cannot revoke it.In such a case, it seems to us that there is no "conveyance," in the proper sense of the word.There is no express grantee, and we think it a fiction to assume, as is assumed by some authorities, that the city, county, or quasi corporation which may be by law intrusted with the control of the way or other easement is the grantee.It is generally said that the dedication operates by way of estoppel.In many cases the law of estoppel applies without doubt.A grantor, by conveying to his grantee a lot in a town or city, and in the description calling for a street, upon which it is asserted to abut, may estop himself to deny, as against his grantee, that such a street exists, although the town or city may never accept it as such.On the other hand, we understand the law to be that, when a dedication is offered and accepted, it is complete, even before any act is done by the representative of the public, which changes the position for the worse.If work be done upon the way or other easement, there is ground for holding the owner concluded.But it is hard to see how the use by the public of a...