Coombs v. City of Houston, 9609.

• Decision Date: 20 November 1930
• Docket Number: No. 9609.,9609.
• Citation: 35 S.W.2d 1066
• Parties: COOMBS et al. v. CITY OF HOUSTON et al.
• Court: Texas Court of Appeals

35 S.W.2d 1066 COOMBS et al.
v.
CITY OF HOUSTON et al. No. 9609. Court of Civil Appeals of Texas. Galveston. November 20, 1930. Rehearing Denied January 29, 1931.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Suit by the City of Houston and others against Mrs. Julia A. Coombs and others. From order granting temporary injunction, defendants appeal.

Affirmed.

W. P. Hamblen, of Houston, for appellants.

Sam Neathery, Rodman S. Cosby, and William D. Orem, all of Houston, for appellees.

GRAVES, J.

Appellants protest against the granting below of a temporary injunction against them, whereby they, at the suit of the city of Houston and certain intervening individual owners of property abutting on that street as such, were restrained from interfering with the city, its agents, servants, or employees, in removing three obstructive houses from the part of Yale street within the city that abuts on blocks 316 and 324 of what is known as Houston Heights subdivision or addition, according to the Omaha & South Texas Land Company's plat thereof, duly filed for record in the office of the county clerk for Harris county on October 31st of 1892. The gravamen of their complaint is that Mrs. Coombs, at the hearing held thereon preliminary to the issuance of the writ, had by undisputed evidence shown herself to be then actually holding this property under a bona fide claim of title thereto that had emanated from her "peaceable and adverse possession thereof, coupled with its cultivation, use, and enjoyment," for an unbroken period immediately preceding that time of more than 35 years,

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wherefore, notwithstanding the appellees' claim of a prior dedication of it as a street, she had at least demonstrated such a probable right thereto as made improper the issuance of the adverse temporary injunction in advance of a trial of her claim on the merits, if indeed she had not already shown full and all-preclusive title by limitation.

The learned trial judge, in entering the order, thus disposed of the heart of this contention: "The Court finds that neither the theory of improper dedication, or of title by limitation, advanced by the defendants as defenses in this cause are such as would be sustainable by a court either in case the issues were being tried on a permanent injunction, or in case of a trial before a jury."

This court approves the quoted view, and affirms the decree based on it; as we see it, the whole controversy is so determined by the plain application to it of Rev. St. art. 5517, to this effect: "The right of the State shall not be barred by any of the provisions of this title, nor shall any person ever acquire, by occupancy or adverse possession, any right or title to any part or portion of any road, street, sidewalk or grounds which belong to any town, city or county, or which have been donated or dedicated for public use to any such town, city or county by the owner thereof, or which have been laid out or dedicated in any manner to public use in any town, city, or county in this State; provided, this law shall not apply to any alley laid out across any block or square in any city or town."

By that statute, which was passed in 1887, five years before Houston Heights was platted in 1892, and seven years before Mrs. Coombs ever bought any adjoining property therein or began her possession of that here involved, the public policy of Texas with reference to how the title to land might be acquired by occupancy, or adverse possession, was imperatively declared to be that no person should thenceforth ever thereby acquire "any right or title to any part or portion of any road, street, sidewalk or grounds which belong to any town, city or county, or which have been donated or dedicated for public use to any such town, city or county by the owner thereof, or which have been laid out or dedicated in any manner to public use in any town, city, or county in this State."

Mrs. Coombs was thus in advance of all pretended tenure on her part charged with knowledge of the fact that she could never by any encroachment upon, or adverse possession of, this strip of land, no matter how long such use of it by her might continue, acquire any right or title to any of it that "had been laid out or dedicated in any manner to public use."

Plainly she could not be legally aggrieved, if she and her advisers then or thereafter were mistaken as to whether or not such a laying-out or dedication had already been effected; that accordingly becomes, we think, the sole material inquiry.

The facts in relation to that, too are undisputed, and, briefly summarized as far as deemed material, are:

The land company's plat of the Houston Heights subdivision, so filed for record in 1892, delineated the laying-out of about 1,700 acres of land surrounding the small strip here involved into blocks, lots, and streets, among which latter was Yale street, shown as adjoining on the west side thereof blocks 316 and 324 of the addition, and as running in both directions far to the north and south of those two blocks, all such streets and thoroughfares so appearing being dedicated to the public use in these express recitations: "The streets and alleys, as designated and marked on said plat and map are dedicated to the use of the owners of...