Dallas County v. Miller, 2440-7974.

• Decision Date: 16 December 1942
• Docket Number: No. 2440-7974.,2440-7974.
• Citation: 166 S.W.2d 922
• Parties: DALLAS COUNTY v. MILLER et al.
• Court: Texas Supreme Court

166 S.W.2d 922

DALLAS COUNTY v. MILLER et al.

No. 2440-7974.

Commission of Appeals of Texas, Section A.

December 16, 1942.

Rehearing Denied January 13, 1943.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Royal C. Miller and others against Dallas County to clear title to and recover possession of a strip of land 200 feet in width situated outside the limits of the City of Dallas, theretofore dedicated by them as an extension of Cadiz street in the City of Dallas. To review a judgment of the Court of Civil Appeals, 158 S.W.2d 828, reversing a judgment of the trial court in favor of the defendant, the defendant brings error.

Judgment of the Court of Civil Appeals reversed and that of the trial court affirmed.

Dean Gauldin, Cr. Dist. Atty., H. Pat Edwards, Civ. Dist. Atty., and Warren S. Cook and Allen Melton, Asst. Dist. Attys., all of Dallas, for appellant.

Wm. Andress, Jr., and McCombs & Andress, all of Dallas, for appellee.

Scurry & Scurry and Robt. H. Jones, Jr., all of Dallas, and Lasseter, Simpson, Spruiell & Lowry and Gordon Simpson, all of Tyler, amici curiæ.

HICKMAN, Commissioner.

This is a suit brought by respondents Royal C. Miller and Mrs. Emma Miller Exline, joined by her husband, A. L. Exline, against Dallas County and certain owners of land adjacent to that involved herein to clear their title to, and recover possession of a portion of a strip of land 200 feet in width situated just outside the limits of the City of Dallas, theretofore dedicated by them as an extension of Cadiz street in the City of Dallas. In answer to special issues the jury found, in substance, that Dallas County had abandoned for street and road purposes strips along the outside edges of the right of way 50 feet in width, that is, that it had abandoned all of the 200 foot right of way except 100 feet through the center thereof. Notwithstanding the answers of the jury the court, upon motion of the county for judgment non obstante veredicto, rendered judgment that respondents take nothing. Upon appeal the Court of Civil Appeals by a majority decision, the Chief Justice dissenting, reversed the judgment of the trial court and rendered judgment for respondents upon the verdict. 158 S.W.2d 828.

The question of whether or not Dallas County had abandoned a portion of this dedicated strip was the subject of prior litigation between these same parties. In the former suit Dallas County was the plaintiff and the relief sought and obtained by it was an injunction against respondents perpetually enjoining them from obstructing the use of any portion of the dedicated premises for street and road purposes. The history of the manner of acquiring this easement and the use to which it had been put prior to the time of the trial in the former suit is recited in the opinion in that case, in Miller v. Dallas County, Tex.Civ. App., 71 S.W.2d 377. Application for writ of error was refused in that case. The judgment entered therein, as between respondents and the County, adjudged the fee in the 200 foot strip to be in respondents subject to an easement in the County over and across all of said premises for road purposes. That judgment was rendered in the trial court on December 3, 1932, and became final by a refusal of an application for writ of error in October, 1934. The claim of the respondents in the instant suit is that, after the judgment in the former suit became final and prior to the institution of the present suit in July, 1938, the County abandoned strips on the outside edges of the right of way. In their petition the respondents did not allege specifically the width of the strips which they claimed the County had abandoned, but the jury found, as above stated, that such strips were each 50 feet wide.

There is no question of res adjudicata in the case. The respondents recognize that the former judgment adjudicated the question that the county had not at the time of its rendition abandoned any portion of its right of way, and ground their case solely upon the contention that an abandonment has taken place since that time.

We accept as elementary the proposition of respondents that, if the findings of the jury were based upon any evidence of probative force, the trial court exceeded its power in rendering judgment non obstante veredicto. Specifically, then, the question for decision is this: Is there any evidence of probative force supporting the findings of the jury? After mature consideration we have concluded that there is none.

Before examining the testimony relied upon by the respondents, we note the universally recognized rule that, while abandonment may be established, like any other fact, by circumstances, yet those circumstances must disclose some definite act showing an intention to abandon and terminate the right possessed by the easement owner. The material question is the intention to abandon, and that intention must be established by clear and satisfactory evidence. Mere nonuser of an easement will not extinguish it. 14 Tex. Jur. p. 733, sec. 37, and the cases there cited; 17 Am.Jur., Easem...