City of Waco v. Darnell
| Citation | 20 S.W.2d 409 |
| Decision Date | 27 June 1929 |
| Docket Number | (No. 809.) |
| Parties | CITY OF WACO v. DARNELL. |
| Court | Court of Appeals of Texas |
Appeal from District Court, McLennan County; Giles P. Lester, Judge.
Suit by Hazel Darnell against the City of Waco. Judgment for plaintiff, and defendant appeals. Affirmed.
John McGlasson, Geo. W. Morrow, and Bryan & Maxwell, all of Waco (on motion for rehearing), for appellant.
Williams, Williams, McClellan & Lincoln, of Waco, for appellee.
Appellee instituted this suit against appellant to recover damages for alleged personal injuries sustained by her while riding in an automobile driven by another party, which collided with a stump alleged to have been situated on Cleveland street in the city of Waco. The cause was tried to a jury, submitted on special issues, and resulted in a verdict for $17,500, of which amount appellee, on motion for rehearing, remitted $7,500, and judgment final was entered for appellee by the trial court for the sum of $10,000.
It is revealed by the record that many years ago a street or alley was left by the property owners between Fourth and Fifth streets in the city of Waco. The line on the north side of said street or alley was straight, and ran at right angles with Fourth and Fifth streets. The property on the south side of said alley or street, abutting same, belonged to Dr. Sears, and in building the fence along the north side of his property and the south line of said street, he built it crooked, and did not run same at right angles to Fourth and Fifth streets. The street or alley as left was 37 feet wide on Fourth street and 22½ feet wide on Fifth street. In the fence line of the Sears property was a bois d'arc tree, to which the fence was attached. When Cleveland was elected president of the United States, the officials of the city of Waco named said street, running between Fourth and Fifth, Cleveland street, and same has been so known and designated since that date, and has at all times been maintained by appellant as a street.
In 1918, the property on the Fifth street side was sold by the heirs of Dr. Sears, and shortly thereafter all of the fence that remained was torn down, and presumably the bois d'arc tree at said time was cut down, leaving a large stump, about 12 inches high. After the fences were all removed and the bois d'arc tree cut down, the then owner of the property, R. D. Roman, made preparation to build an apartment house on the side of the lot abutting Cleveland street. He started fixing the foundation, but was stopped by the city officials on their claim that the place where he was planning to build his apartment house took in part of Cleveland street, which belonged to the city. The city engineer made a survey of the street and the property adjoining, and prepared and filed a plat with the city, showing, according to said plat, that the city was entitled to a street 37 feet wide entirely across said block from Fourth to Fifth street. The plat filed by said engineer showed that the city claimed 14½ feet of city property was being taken by Mr. Roman on Fifth street, and running back in irregular shape to the rear of his property. After said survey was made, the mayor and the four city commissioners went with Mr. Roman and viewed the property, and they then and there agreed with each other on the street line, under the terms of which said street was recognized as being 27½ feet wide on Fifth street, running back straight and at right angles to Fifth street to the rear of the Roman property; the city thereby taking part of the property claimed by Roman on Fifth street, and he taking part of the property the city claimed on the rear end of his lot. The effect of this agreement was to place the bois d'arc stump in question some 2 or 3 feet inside of Cleveland street. Appellant has maintained as the graded portion of Cleveland street a strip about 20 feet wide, the graded portion lacking about 6 inches of going to said stump.
In response to the special issues submitted, the jury found that the bois d'arc stump was situated on property both owned and controlled by appellant; that the officers of appellant knew of the conditions existing with reference to the location of said stump, and that it was negligence for appellant to leave the stump as it was; and that said negligence proximately caused appellee's injury. The jury further found that appellant failed to establish and maintain Cleveland street at a width reasonably safe for the public to travel, and that same was negligence, which was the proximate cause of the injury. The jury further found that the stump was so close to the traveled portion of Cleveland street that it was dangerous to those who used the street; that it was negligence for the city to fail to remove same, or erect a curb or railing near the same; and that said negligence was the proximate cause of the injury. The jury further found that neither the driver of the car nor appellee was in any way negligent at the time of the injury.
Appellant, by several assignments of error, complains of the action of the trial court in permitting the witness Roman to testify with reference to the conversation he had with the mayor and city commissioners relative to the location of the street line, and the agreement made between him and the city officials locating said line, on the theory that it was an effort to pass title to land by parol. We overrule these assignments. The jury found that the stump in question was on property over which the city was exercising control at said time. Said testimony of Mr. Roman tended to show that he did in fact at said time dedicate that portion of the property on which the stump was located to the city of Waco for street purposes, and that the city, through its officials, then and there accepted same.
Said testimony was also admissible as tending to show that appellant, through its proper officials, and Mr. Roman, as owner of the abutting property, agreed upon and fixed the boundary line, which was in dispute between said parties; Mr. Roman claiming the boundary line was one place, and the officials of appellant claiming a different place. The effect of the agreement, as testified to by Mr. Roman which was not in any way contradicted or challenged by any of the officials of appellant, was to either definitely on the part of Mr. Roman dedicate said property to appellant for street purposes, or fix the boundary line of the street. It was uncontradicted that, while the parties were discussing the location of the street line, and in connection therewith Mr. Seward, the city engineer, ran the line showing where the boundary of said street would run if same was placed 5 feet inside of what was claimed to be the old Sears fence on Fifth street and running back parallel with the north side of said street. As we understand the authorities, they uniformly hold that a disputed boundary line can be agreed upon and established by parol. 4 R. C. L. p. 126; Cook's Hereford Cattle Co. v. Barnhart (Tex. Civ. App.) 147 S. W. 662, and authorities there cited.
Appellant objected to the introduction of the testimony of the witness Snead with reference to the location of the bois d'arc tree as it existed some 20 to 40 years ago, on the theory that said testimony was too remote. We overrule this assignment. The witness had lived in that neighborhood from childhood until he was grown, and was familiar with the lines of the fences and the trees, and had since the lawsuit was filed examined the old stump, and his testimony tended to...
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