City of Tyler v. Smith County

• Decision Date: 16 January 1952
• Docket Number: No. A-3294,A-3294
• Citation: 246 S.W.2d 601,151 Tex. 80
• Parties: CITY OF TYLER et al. v. SMITH COUNTY et al.
• Court: Texas Supreme Court

Page 601

246 S.W.2d 601

151 Tex. 80

CITY OF TYLER et al. v. SMITH COUNTY et al.

No. A-3294.

Supreme Court of Texas.

Jan. 16, 1952.

Rehearing Denied March 12, 1952.

Troy Smith and Ted Chilcote, Tyler, for petitioner, City of Tyler.

Lasseter, Spruiell, Lowry, Potter & Lasater, Tyler, for petitioners, Dr. Woldert et al.

Weeks & Hankerson, Tyler, for respondent.

BREWSTER, Justice.

This is a suit for a declaratory judgment relating to the square in the City of Tyler, filed by Smith County et al., respondents, against City of Tyler and as a class suit against Dr. Albert Woldert et al. representing two classes of defendants: (1) those owning property continguous to the square and (2) those owning property within the original 100-acre townsite, petitioners. A trial court judgment for respondents was affirmed by the Court of Civil Appeals, Associate Justice Williams dissenting. 240 S.W.2d 496.

The dispute is between Smith County, the City of Tyler and the individual property owners, as to their respective rights in the square. Smith County contends that it owns the square, on which its courthouse is located, in fee simple, hence can move the courthouse and sell the square to anybody it chooses. The City of Tyler asserts a fee simple title to the square except as to the streets platted and actually used on the four sides thereof. The individual lot owners claim that the square has long been dedicated as a public square for the use of the public and cannot be diverted to private uses. The effect of the judgments below is to sustain the contention of Smith County, except for an easement in the City of Tyler for street purposes in that part of the square now occupied by the four streets surrounding it.

By statute effective April 11, 1846, the legislature created Smith County. It named one James Hill and four others as commissioners to mark the county lines and corners, to locate the county 'site' and to purchase or receive by donation 300 acres of land for the site or, in the absence of sale or donation, to condemn 100 acres 'and proceed to lay off a town, and to sell the lots thereof to the highest bidder, reserving lots for a courthouse jail, and such other public lots as they may deem necessary.' Gammel's Laws of Texas, Vol. 2, p. 1361.

On Feb. 6, 1847, one Pollit conveyed to Hill, 'attorney in fact for Commissioners appointed to select and locate the Town of Tyler,' 100 acres of land 'for the use and benefit of the said Town of Tyler, * * * forever in fee simple * * * To have and to hold said tract or parcel of land for the use and benefit of the Town of Tyler * * *.'

Before this deed was executed, Hill, for the Commissioners, had surveyed the 100 acres; and his field notes, dated October 1, 1846, appear in the record. Following his signature is this notation: 'The center of the public square begins from the N.W. cor. of said 100 acre survey South 78 deg. 28 East 20.15 chains dist. A. H. Martin Clerk of the County Court.' However, neither the reason for this notation nor the authority of the clerk to make it is shown.

On Apr. 18, 1849, Hill and the other commissioners executed to one Ochiltree a deed to Lots 1 and 2, in Block No. 2, 'in the plat of said town of Tyler,' reciting that grantee had been highest bidder at auction held on Dec. 21, 1846. The plat here referred to, however, has not been found.

There were three more acts of the legislature relating to the matters under review. On Feb. 26, 1848, Hill et al., commissioners, were directed to sell the remainder of the lots in the City of Tyler and apply the proceeds to the completion of a courthouse and jail. Gammel's Laws of Texas, Vol. 3, p. 37. By act of Jan. 29, 1850, the Commissioners were directed to make to the County Court of Smith County 'a correct statement of their proceedings, the number of lots which have been sold, the amount received for said sales, and the amount paid out by said Commissioners and for what purposes expended'; and they were required to make bond for double the probable amount in hand. Ibid., p. 483. The third act, passed Jan. 29, 1850, incorporated 'the town of Tyler, in Smith County.' Among other things, it provided that the 'limits of said corporation shall extend over one hundred acres in a square, laid off so as to have the public square of said town of Tyler in the Center of said corporation limits.' Ibid., p. 60, 61. (All italics in this opinion are ours.)

In April, 1854, a map of the Tyler townsite of 100 acres was filed for record in Smith County, but the date when it was drawn is not shown. It shows the lots and blocks and the bounds of the square in dispute; but there is nothing on the map to designate the nature, ownership or use of the square.

Nov. 21, 1855, the Commissioners Court of Smith County passed an order that 'J. C. Hill be required to survey the public square in the Town of Tyler.' This Hill did; and his field notes, dated Feb. 23, 1856, and recorded July 4 or 5, 1856, read as follows: 'Field notes of the public square of Tyler, Smith County. I commenced to survey the square 6 in. East of the centre of the present court house at the Original Rock placed there at the commencement of said town. Thence I run from said Beginning North and South 200 feet and East and West 350 feet that makes the square 400 feet North and South and 700 feet East and West including the centre street 90 feet wide and the 4 streets bounding the square each 50 feet wide all the balance of the streets is 50 feet wide.' Then, after describing the lots and blocks in the 100 acres by metes and bounds, the notes conclude: 'The above Blocks and Lots is all numbered on the map of said town accompanying these field notes as also the streets with their width and names.' (This map has not been found.) After Hill's survey had been made, the Commissioners Court on May 21, 1856, ordered that one Douglas 'be required to have four rocks put up on the public square one at each corner of the square,' and as a part of this order the court directed the County Clerk to record 'the field notes of the public square of the town of Tyler' which Hill had made.

On May 24, 1851, the Commissioners Court of Smith County 'ordered and decreed * * * that a court house be built and erected on the centre of the public square in the town of Tyler * * *.' This was after an order on August 22, 1848, had directed 'that the court house now standing on the public square' be sold at public auction.

And 56 years later, on Jan. 2, 1907, by order of the Commissioners Court, Smith County entered into a contract with the City of Tyler and adjoining property owners to pave 'around the public square of said City of Tyler a distance of fifty feet extending out from the sidewalk into the public square for said distance of fifty feet.' Again, five years later, on July 9, 1912, the Commissioners Court agreed with the City of Tyler to widen and pave the streets on the east and west ends of the 'public square' 30 feet.

On August 22, 1854, the Commissioners Court appointed 'a committee to purchase material for painting the enclosure around the Courthouse.' This 'enclosure' was an iron paling fence which extended from four buildings, one off each corner of the courthouse, so as to contain all five buildings, with the courthouse in the center and with a through the fence on all four sides. At one time the Court of Criminal Appeals occupied one of these buildings while the other three were used by the county tax collector, the county superintendent and the county judge, respectively. Thus were the courthouse and its associated buildings segregated from the much larger part of the 'square.' That the county considered it as so set off is established by the fact that when the Commissioners Court ordered construction of two of them it directed 'said buildings to be built one in the northeast and one in the southwest corner of the courthouse yard equal distance from the Courthouse.'

With the courthouse and other governmental buildings so enclosed from the remainder of the square, the record shows numerous uses made of the remainder which are wholly unrelated to a court or other governmental use. For example, it was used for years as a market place, where farmers sold their cotton, corn and other farm products, garden truck, wood and the like. One witness said that farmers from Smith, Henderson and Van Zandt counties 'would bring their cotton here and I have seen thirty to forty cotton wagons; cotton buyers swarmed over it, filled it up.' That the county intended that it should be so used is proved by an order of the Commissioners Court granting to the 'citizens of Tyler' the privilege 'to build a market house on the public square in said town' and donating $20 provided the building cost as much as $200.

Moreover, the public have used it freely otherwise. A photograph in the record shows a portion of the square on a busy day in Tyler; and the square is completely covered by hundreds of buggies and wagons and teams-a free parking lot.

A band stand was built on it and used for the entertainment of the public. Benches were constructed about the square for public use. Preaching services and political meetings were conducted there. For at least two years the county fair was held on the west end of the square. There was a 'public well for the public generally to draw water from and for their stock.' A former county judge testified, without dispute, that the portion of the park outside the enclosure which was around the courthouse was generally used in the manner and for the purposes above recounted, while that portion inside...