Clark v. State

• Decision Date: 15 April 1959
• Docket Number: No. 13446,13446
• Citation: 324 S.W.2d 75
• Parties: B. F. CLARK, Appellant, v. STATE of Texas et al., Appellees.
• Court: Texas Court of Appeals

Page 75

324 S.W.2d 75

B. F. CLARK, Appellant, v. STATE of Texas et al., Appellees.

No. 13446.

Court of Civil Appeals of Texas, San Antonio.

April 15, 1959.

Rehearing Denied May 13, 1959.

Wm. H. Shireman, David M. Coover, Corpus Christi, for appellant.

Will Wilson, Atty. Gen., H. Grady Chandler, Joseph G. Rollins, Asst. Attys. Gen., Austin, I. M. Singer, City Atty., J. F. Park, Milton W. Walton, Asst. City Attys., Corpus Christi, for appellees.

BARROW, Justice.

This suit was originally filed by plaintiff, B. F. Clark, against the State of Texas, for damages for the diversion of a dedicated public park to a right-of-way for the construction of a high level bridge. The State, over the objection of plaintiff, was permitted to implead the City of Corpus Christi as a third party defendant, seeking indemnity over and against the City in event of recovery by plaintiff against the State.

The State and City each answered by plea in abatement, in which they raised the objection that plaintiff had no justiciable interest in the controversy and was not entitled to maintain a suit for damages. The trial court sustained the respective pleas in abatement, and upon plaintiff's refusal to amend, dismissed the cause. This appeal is from that judgment.

It was stipulated by the parties that on the hearing of the pleas in abatement, the only evidence adduced in support of the respective pleas was the following portions of plaintiff's first amended original petition, to-wit:

'* * * and said Fractional Blocks 37 to 42, inclusive, were being maintained by the City of Corpus Christi and were being used by the public exclusively for park purposes.'

'* * * (3) That the City of Corpus Christi was maintaining, and the public was using, said fractional blocks as a park;'

It was further agreed that the stipulation should be incorporated in the transcript, and be considered as the statement of facts in the appeal for the purpose of passing upon the action of the court in sustaining said pleas and dismissing the cause.

The City also answered by numerous special exceptions, but they were not acted upon by the court.

Inasmuch as the questions here presented involve whether or not the plaintiff has a justiciable interest in the controversy, the decision requires the construction of the allegations of plaintiff's petition.

The following allegations appear in plaintiff's second original petition: That plaintiff is and was at all times pertinent to this suit the owner of certain real estate, being seven lots in Block No. 54, and ten and one-half lots in Block No. 55, of Brooklyn Addition to the City of Corpus Christi, Texas, as shown by the map or plat thereof, recorded in Volume 'A', page 32, Map Records of Nueces County, Texas. That at the time plaintiff acquired the title to said real estate, and at all times pertinent to this suit, there has been located on said property a tourist court known as 'Grande Courts,' consisting of some eighty-two units or cabins in addition to other improvements, and the land area lying to the east of said Grande Courts, between Avenue C and Timon Boulevard was open space, occupied by no buildings or structures, was beautifully landscaped with mature palm trees and other native and ornamental trees and strubs, and covered with grass. The said area being particularly described as 'all of Fractional Blocks Forty (40) and Forty-one (41) of the Brooklyn Addition to the City of Corpus Christi, Texas, lying between Avenue C and Timon Boulevard.' That on and prior to January 11, 1913, title to the east halves of Blocks 52 to 60, inclusive, and all of Fractional Blocks 37 to 43, both inclusive, of said Addition, lying between Avenue C and Timon Boulevard, as shown by the map or plat of said Addition, was vested in F. M. Swearingen and Hazen Follansbee. That on January 11, 1913, said Swearingen and Follansbee conveyed the east half of said Blocks 52 to 60, inclusive, to Joseph Hirsch and L. C. Wells, and it was the intention of the parties to such conveyance, that the property lying between the east line of the property therein conveyed and Timon Avenue should be dedicated as a public park, and that such dedication was for the use and benefit of the property therein conveyed, as evidenced by certain exhibits attached to plaintiff's petition. That the defendants recognized that said fractional Blocks 37 to 42, constituted a park which was dedicated by the owner thereof, for the use and benefit of the property above described, as well as other property contiguous to and fronting upon said park. That plaintiff deraigns title to said property in Blocks 54 and 55, by virtue of mesne conveyances emanating from Joseph Hirsch and L. C. Wells, and one of the intermediate grantors through and under which said title is deraigned is W. E Pope, under whom the State of Texas deraigns its title to said fractional blocks. That the conveyances to the defendant State of Texas of said fractional blocks expressly refer to certain instruments being Exhibits 'B', 'C', 'D' and 'E' attached to plaintiff's petition, which show the dedication of such property as a park for the benefit of plaintiff's property. That plaintiff deraigns title to part of said property by virtue of mesne conveyances emanating from Rincon Improvement Company, being one of the sources of the title through and under which the defendant State of Texas deraigns its title to said fractional Blocks 37 to 42.

Plaintiff alleges that by virtue of such dedication instruments he has an 'easement' or 'equity' appurtenant to his property, and that he has an interest different from the public generally in the perpetual and exclusive use of said fractional Blocks 37 to 42 as a park; and that therefore the injury which plaintiff received, was not in common with other property in the community being the North Beach Section of said City, but was peculiar to plaintiff's said lots.

Plaintiff further alleges that one of his predecessors in title acquired title to the property in November, 1928, and thereafter erected thereon the 'Grande Courts' and commenced to improve said fractional Blocks 40 and 41, lying in front of said planting thereon grass, shrubs, palm trees plainting thereon grass, shrubs, palm trees and flowers. That said Grande Courts thereafter maintained said fractional Blocks 40 and 41 as a park and tended and cultivated the plants and trees thereon, until sometime after December, 1936, when the area was annexed to the City of Corpus Christi. That sometime after the annexation of the area into the City of Corpus Christi, the City began and thereafter continued to maintain Blocks 37 to 42 as a part of its Park System, and by said acts the public accepted the dedication of said area for park purposes only forever, and said dedication thereby became fully and finally effected. That plaintiff acquired his title to said Grande Courts in April, 1953, without any knowledge of any proposed diversion of said park area to a right-of-way for State Highway purposes. About February of 1954, the Texas Highway Commission tendered to Nueces County and the City of Corpus Christi a proposal for the construction of a six lane high level bridge over the entrance to Corpus Christi Ship Channel Basin, as a solution to what was known as the 'Bascule Bridge Bottleneck.' That by January, 1955, the State of Texas, acting by and through the State Highway Engineer, had decided upon the location of the high level bridge and had prepared a right-of-way map showing the proposed right-of-way for the ship channel crossing on U. S. Highway No. 181. That on April 6, 1955, pursuant to said proposal theretofore tendered by the Texas Highway Commission for the construction of said bridge, the City of Corpus Christi, joined by the Guaranty Title & Trust Company, as Trustee, executed and delivered to the State of Texas, a conveyance of all said fractional Blocks 37 to 42, which conveyance was accepted by the State of Texas, and a copy thereof is attached to plaintiff's petition. That on and prior to October 3, 1955, the location of said bridge and the plans and specifications relating thereto were fully known and had been made public by a publication thereof in the Corpus Christi Caller Times.

Plaintiff alleged that he neither consented to nor acquiesced in the selection of the route and location of said high level bridge. That on June 1, 1956, the State entered into a contract with Cage Brothers for the erection of the portion of said high level bridge opposite said Grande Courts. That the plans and specifications and said contract contemplated the erection of a bridge structure, commencing at about the south boundary line of Elm Street, the same being the northern boundary line of fractional Block 40. That said structure commenced and had a finished grade at an elevation of approximately 15.76' and thereafter rose in elevation in a southerly direction at the rate of 5% grade, so that said structure was approximately 50' in elevation as it passed opposite the southern boundary line of 'Grande Courts.' That there is now located upon said fractional Blocks 40 and 41, fourteen piers of 'Bents', fully completed and in place, and the construction of the road...