Etheridge v. City of Dallas

• Decision Date: 14 February 1952
• Docket Number: No. 2997,2997
• Citation: 246 S.W.2d 692
• Parties: ETHERIDGE v. CITY OF DALLAS.
• Court: Texas Court of Appeals

Page 692

246 S.W.2d 692

ETHERIDGE v. CITY OF DALLAS.

No. 2997.

Court of Civil Appeals of Texas, Waco.

Feb. 14, 1952.

Rehearing Denied March 6, 1952.

Odeneal, Herndon & Franklin, Dallas, for appellant.

H. P. Kucera, City Atty., H. Louis Nichols, Asst. City Atty., Dallas, for appellee.

HALE, Justice.

I. G. Etheridge, appellant, brought this suit as a formal action in trespass to try title against the City of Dallas for the purpose of recovering the title and possession of a certain tract of land situated within the corporate limits of the municipality. Appellee answered with a plea of not guilty and, in the alternative, a claim of title based upon the ten year statute of limitation. The case was tried without a jury and resulted in a 'go hence' judgment for appellee, the court decreeing in the judgment that appellee was entitled to retain possession of the property sued for pursuant to (1) a certain deed from the City and County of Dallas Levee Improvement District (hereafter referred to as the Levee District) to appellee dated January 29, 1929, (2) an instrument of dedication from the Levee District to the County of Dallas dated January 28, 1929, and (3) the right of appellee 'to use such of said property as is now occupied and used for street purposes, such right having been established under the ten year statute of limitation.'

Under appropriate points in his brief appellant says the court erred in decreeing that appellee was entitled to possession of the land pursuant to the deed from the Levee District to appellee dated January 29, 1929, because the grant in such instrument was made on a condition precedent which was never performed or, in the alternative, on a condition subsequent which was breached, thereby giving appellant, as assignee of appellee's grantor, the right of reentry.

The property in controversy is a part of Lots 2, 3, 4, 5, 6, 12, 13 and 14 in Block No 28/3009 in the City of Dallas. The Levee District is the common source from which both parties deraigned their asserted titles. Under date of January 29, 1929, the Levee District executed and delivered to appellee an instrument in writing whereby, for a recited consideration of one dollar, it granted to appellee 'the free and uninterrupted use' of the property here in controversy. This instrument further recited that such use and occupancy was granted upon certain conditions therein set forth, such conditions being in part as follows: '(1) That the said City of Dallas shall use said land for park purposes only. * * * (5) All of the above provisions are made a part of the consideration for this grant, and a violation of any of them shall, at the option of said City and County of Dallas Levee Improvement District, terminate this grant or agreement.' Under date of October 1, 1944, the Levee District executed and delivered to appellant a general warranty deed in due form whereby it granted and conveyed to him the property here involved. The evidence shows that appellee has not used any part of the property at any time for park purposes but it has used a part of the same for street purposes. In April of 1945 appellant rented the property or a part thereof to a sign board company and since that time the company has been continuously maintaining large sign boards on the premises and has been paying rentals for the use of the same to appellant.

It is quite clear from the language employed in the written instrument dated January 29, 1929 that the intended purpose thereof was to grant to appellee only a right to use the property therein described and not to convey an estate in fee simple. It is also clear, we think, that such right of user or easement was being granted upon the express condition that such property must be used by appellee for park purposes and, furthermore, that it could not properly be used for any other purpose.

A condition precedent in an instrument affecting the title to land is said to be one which must take place before the estate can vest or become enlarged, while a condition subsequent is one which operates upon an estate already created and vested, the latter rendering the estate so created and vested liable to be defeated. Wiederanders v. State, 64 Tex. 133; 17 Tex.Jur. p. 109, Sec. 9. The application of this abstract test to the concrete facts involved in border line cases has been a source of considerable difficulty to the courts.

We are inclined to the view that the mandatory requirement in the instrument under consideration to the effect that appellee 'shall use said land for park purposes' constituted a limitation which was in contemplation of law a condition precedent to the creation or vesting of any estate in appellee. Spinks v. First Christian Church of Vera, Tex.Com.App., 273 S.W. 815 and authorities. However, even though such limitation be regarded as a condition subsequent, and even though appellee might have used a part of the premises for park purposes, nevertheless the additional use of a part of the property by appellee for street purposes undoubtedly constituted a violation and breach of the condition that such property should be used for park purposes only, thereby giving rise to the right of appellant, as assignee of the Levee District, to terminate the conditional grant and to re-possess the premises in dispute. Perry v. Smith et al., Tex.Com.App., 231 S.W. 340. We are of the opinion that appellant duly evidenced the lawful exercise of his right of re-entry by renting the property to a tenant in April of 1945 and again by the institution of this suit on March 25, 1950. Gulf, C. & S. F. Ry. Co. v. Dunman, 74 Tex. 265, 11 S.W. 1094.

Therefore, we hold that the trial court erred in decreeing that appellee was entitled to retain possession of the property sued for pursuant to the so-called deed from the Levee District to appellee dated January 29, 1929.

Under other points in his brief appellant says the court erred in decreeing that appellee was entitled to retain possession of the property sued for by virtue of a certain instrument of dedication from the Levee District to the County of Dallas dated January 28, 1929. He also says the court erred in finding and decreeing that appellee had acquired the right to use 'such of said property as is now occupied and used for street purposes' under the ten year statute of limitation. Since the issues of dedication, prescription and limitation are closely related they will be discussed together.

The entire tract of land in controversy is oblong in shape. It extends generally in a northwesterly-southeasterly direction, being approximately 700 feet in length by a width varying from 90 to 135 feet. Traversing the tract at an angle of about 90 degrees is an overhead viaduct, known as the Cadiz Street Viaduct, which extends over and across the subject property in a northeasterly-southwesterly direction. The viaduct spans the Trinity river and its adjoining bottom lands to the west, the floor level of the viaduct near the west end where it passes over the property in dispute being approximately 35 feet above the ground level below. The over-all width of the viaduct is 53 feet, the width between its supporting piers being 38 feet. On the ground level underneath the viaduct is a dirt or graveled roadway, the width thereof varying from 24 to 30 feet. This roadway passes under the viaduct, at an angle of about 90 degrees, on a part of the property here involved, its general course following that of a gradual 'S' curve as it passes under the viaduct from the southwest and emerges therefrom to the northeast.

The record shows that on and prior to November 10, 1928, appellant was the owner of all the land described in his petition herein. On the latter date he conveyed the greater part thereof, together with other lots not involved in this suit, to the Levee District, a public corporation of the State of Texas, by general warranty deed for a recited consideration of $7,875.00, that being the amount of damages allowed to him by the Commissioners of Appraisement in a condemnation proceeding theretofore instituted by the Levee District. Thereafter, on December 26, 1928, he conveyed to the Levee District 'the free and uninterrupted use, liberty, privilege, easement and right of way, for the purpose of building and maintaining levees, borrow pits, flood way and any and all other uses and purposes which are or may be necessary or desirable in the building or maintaining of any system of levees or drainage which said City and...