Dozier v. City of Austin

• Decision Date: 13 June 1923
• Docket Number: (No. 6980.)
• Parties: DOZIER v. CITY OF AUSTIN.
• Court: Texas Court of Appeals

253 S.W. 554

DOZIER v. CITY OF AUSTIN.

(No. 6980.)

Court of Civil Appeals of Texas. San Antonio.

June 13, 1923.

Rehearing June 27, 1923.

Appeal from District Court, Travis County; Cooper Sansom, Judge.

Suit by the City of Austin against W. E. Dozier. From judgment for plaintiff, defendant appeals. Affirmed.

Barlow & Barlow, of Austin, for appellant.

J. B. Rector and Hart & Patterson, all of Austin, for appellee.

FLY, C. J.

This is a suit instituted by appellee to obtain a judgment requiring appellant to remove certain obstructions placed by appellant in and upon a certain alley in said city, lying on the east of a certain lot No. 1 of Johnson's River addition, south of Dam boulevard, that said alley was dedicated to appellee by Charles Johnson who divided the addition into lots and blocks and dedicated the streets and alleys adjacent thereto as shown by a map or plot of said subdivision recorded in Plat Book 2, page 244, Travis County Plat Records. The cause was tried by jury on special issues, and upon the answers to such special issues judgment was obtained requiring appellant to remove all obstructions placed by him on said 19 feet alley on the east of his lot No. 1.

The alley was shown by the evidence to have been legally dedicated as an alley to the city of Austin, and that the city, as found by the jury, had fully accepted the dedication that appellant had projected his garage into the alley for the distance of 2 feet so as to prevent or unreasonably interfere with the full and free use of said alley, and that appellant had constructed his curbing along said alley, for a distance of 6 feet into the same in such way as to prevent or unreasonably interfere with the full and free use by the public of such alley.

The pleadings of appellee were sufficient to state a cause of action against appellant. The facts stated showed that appellee had no remedy at law, and no allegation of damages was required to entitle appellee to an order commanding appellant to remove any obstructions placed by him in any street or alley of the city. A city cannot recover damages arising from the obstruction of streets. It has the right to have them removed. Appellee is a corporation organized by its citizens to administer their affairs, have their laws executed, protect their streets, alleys, and public grounds from trespassers and invaders of their rights, and, in seeking the aid of the courts of Texas to remove obstructions from streets and alleys placed there by trespassers and those acting in defiance of law, it does not devolve upon such corporation to allege or prove damages or that it has an adequate remedy at law for such relief. It has no such remedy at law. The only matter to be alleged or proven was the invasion of a public right. Dillon, Mun. Corp. § 1130; State v. Goodnight, 70 Tex. 682, 11 S. W. 119; Oxford v. Willoughby, 181 N. Y. 155, 73 N. E. 677; Woodbridge v. Middlesex Water Co. (N. J. Ch.) 68 Atl. 464. This action was brought by the guardian of the public to conserve the rights which the public have in the alley as a highway. The duty rested on the city to have the obstruction removed. Joyce on Injunctions § 1285, and authorities cited in footnote. The first, second, third, eleventh, fourteenth, fifteenth, sixteenth, eighteenth, and nineteenth assignments are overruled, with the first, second, and third propositions thereunder.

The fourth proposition, claiming to be propounded under the fifteenth assignment of error, is really a lengthy statement of facts followed by two propositions, one that a charge copied in the statement is erroneous, and the other that an acceptance of one street or alley is not an acceptance of all the streets and alleys embraced in a platted addition. Wherein the charge is erroneous is not indicated. It is not stated in the charge, nor claimed by any one that the acceptance of one street or alley in an addition would be an acceptance of all the streets and alleys designated on a plat or map of an addition. However, there is sufficient authority to the effect that formal acceptance by the city is not required where lots have been sold to purchasers and improved by them with reference to the plat of the addition. The very fact that lots were sold off in the addition gave the right, not only to the purchasers to use the designated streets and alleys, but also to the general public. The sale and conveyance of the lots, according to the plan of the addition, was a grant that carried with it the implied covenant that the streets and other public places should be forever open to the use of the public, and gave the right to the city of Austin, as the organized representative of the public, to take possession of and use the streets and alleys whenever the progress of the city demanded it. City of Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924; Martinez v. City of Dallas, 102 Tex. 54, 109 S. W. 287, 113 S. W. 1167; Townsite Co. v. Paducah Tel. Co., 109 Tex. 452, 212 S. W. 147. In the Martinez Case the opinion of the Court of Civil Appeals of the Fifth District was adopted, and in that opinion Chief Justice Rainey said:

"There was no specific act by the city shown to indicate an acceptance before the execution of the deed by Ervin to Overand, but there was no necessity of such acceptance to make such dedication binding, where the owner of such property has conveyed to parties with reference to such dedication."

This is reiterated in the Paducah Telephone Company Case

It has also been held that an acceptance may be implied where the street or alley is beneficial to the public. Elliott, Roads & Streets, § 167. The lot was sold to appellant by the original owners of the tract being described as lot 1 in block 1 of Johnson's Addition, "according to the map or plat of said addition as the same appears...