F. J. Harrison & Co. v. Kennard

• Decision Date: 01 January 1875
• Citation: 44 Tex. 255
• Parties: F. J. HARRISON & CO. v. BORING & KENNARD.
• Court: Texas Supreme Court

44 Tex. 255

F. J. HARRISON & CO.

v.BORING & KENNARD.

Supreme Court of Texas.

1875.

APPEAL from Gregg. Tried below before the Hon. Z. Norton.

Suit by F. J. Harrison & Co. against Boring & Kennard to enjoin them from appropriating to their private use a portion of a lot in the town of Longview, alleged to have been sold under such circumstances, by the Southern Pacific Railroad Company, at the original sale of lots, as to create an easement thereon in favor of plaintiffs. The pleading and evidence referred to in the opinion are sufficiently stated for a proper understanding of the case.McKay & Mabry, for appellants, cited Hermon on Estoppel, p. 494, secs. 517, 518; Wash. on Easements, p. 97; 1 Boy, 239; Powell v. Thomas, 6 How., 300; Campbell v. McCoy, 31 Penn., 263;3 Paige, 254;Oswald v. Grenet, 22 Tex., 100;3 Vt., 530;13 Minn., 13;3 Barb., 254;6 Pet., 431;15 Mo., 634; 3 B. Monr., 27; 2 Mart., 223;6 Whart., 193; Serg. & R., 227; 5 Denio, 213; 19 Ib., 558; Hill v. Miller, 3 Paige, ch. 254; 8 Paige, 351;38 Barb., 513;14 Ohio, 54;Leonard v. Leonard, 7 Allen, 277;1 Comst., 242; 9 Cow., 13; 9 Wheat., 432;1 Paige, 473; 25 Call., 154; 33 Ib., 288; 24 Id., 114; 11 How., 322;34 Tex., 453;12 Pick., 48; 3 Story C. C., 365.

A. T. Burke, for appellees, cited Oswald v. Grenet, 15 Tex., 118;22 Tex., 99; 3 Kent, 517, 518, 524, and note 576; 8 Tex., 462;19 Tex., 64;1 Tex., 34;2 Tex., 49;19 Tex., 226;15 Tex., 410;7 Tex., 226; Ib., 587; 8 Tex., 336;4 Tex., 93.

Drury Field, also for appellees.

ROBERTS, CHIEF JUSTICE.

The grounds of action set up by the plaintiffs are that the lot No. 7, upon which they erected their banking-house, was adjoining to an open space represented in the plat of the town of Longview by lots Nos. 6 and 5, in block 21, upon which the defendants had no right to build a house or otherwise use for private purposes as their own property, because, first, said lots Nos. 6 and 5 had been dedicated to the public use as an open space in connection with the railroad depot at the time the lots of said town were sold by a public announcement made by the authorized agent of the railroad company who laid off the town and sold the lots on land belonging to the company; and, secondly, that said lots Nos. 6 and 5 were part of an open space upon which he had a right of servitude by reason of a right of easement pertaining to lot No. 7, conferred at the time of its sale by an announcement made by the said authorized agent of said company that the space occupied by lots No. 6 and 5 would not be sold, but would be kept open for depot purposes, upon the faith of which public announcement Holt & Gilchrist purchased said lot No. 7 at a high price, and upon faith of which the plaintiffs afterwards bought part of lot No. 7, and erected their banking-house, with one side fronting upon and in reference to said open space, and had placed a permanent pavement thereon as a walk to one of the entrances to their said house from the said open space. Plaintiffs averred that said space had been kept open and used as such by those who had owned lot No. 7 and all others whose business in connection with the depot required it, from the time of the sale of the lots in 1870 until 1874, when defendants commenced the erection of their house immediately in front of and adjoining to that of the plaintiffs.

Plaintiffs further allege that Holt & Gilchrist having bought lots Nos. 7 and 8 with reference to lots Nos. 6 and 5 being kept open as a convenience and advantage to their business house, demanded that it should be declared in their deed; and to secure them in that respect, and for that purpose alone, the president of said company, before delivering the deed and receiving the purchase-money, wrote under the same the following statement, viz: “It is hereby agreed and understood that said company will not sell lots Nos. 5 and 6 on block 21 to any person or persons other than said Holt & Gilchrist.

W. A. HAUSER, Prest.”

The defendants deny that lot No. 6 was dedicated to public use, or that any easement in reference thereto pertained to lot No. 7, and alleged that they were bona fide purchasers of the north half of lot No. 6, for a valuable consideration, without notice of any such dedication or easement, and make an exhibit of their deed executed to them by the Texas Pacific Railroad Company, successor to the Southern Pacific Railroad Company, in which said company, for the sum of three hundred and fifty dollars, (one hundred and seventy-five paid down and the balance secured by two negotiable notes, the last of which is due on the 19th of May, 1876,) grants, bargains, sells, and conveys to Boring & Kennard, “all of its right and title in and to” the north half of lot No. 6, and (after expressly retaining a vendor's lien) “binds itself to warrant and forever defend the title hereby conveyed against the lawful claim of all persons claiming the same or any part thereof, of, from, by, or through said company.” This deed bears date the 19th day of May, 1874.

The defendants, in their answer, make exhibits of the deeds of the several persons through whose hands lots Nos. 7 and 8 have passed. All of them except that from Pegues & Co. to the plaintiffs, dated 16th of August, 1873, make some reference to the privilege, as it is termed, acquired by Holt & Gilchrist on lots 6 and 5, in the purchase of lots 7 and 8, at the sale of the lots, the vendors binding themselves not to buy lots Nos. 6 and 5, and conveying their privilege or rights thereon. The last vendees of these lots Nos. 7 and 8 (except as to that part of lot 7 that was owned by plaintiffs) Womack, Luckett & Womack, for the consideration of ten dollars, executed a deed releasing to the company this privilege or right on the north half of lot 6, dated the 25th day of June, 1874, over a month after the date of the company's deed of the north half of lot 6 to the defendants, Boring & Kennard.

Under the evidence adduced on the trial and the charge of the court the jury found a verdict for the defendants, and assessed their damages, for the wrongful suing out the injunction, at one hundred dollars. The judgment of the court was rendered according to the verdict.

The grounds in the motion for a new trial and the errors assigned are, that the court erred in the charge to the jury and in refusing to give the charges asked by the plaintiffs, and that the verdict of the jury was contrary to the law and the evidence.

The charge of the court defined with reasonable clearness what constituted a dedication to public use as a public common, but very indefinitely what constituted an easement, which would give the purchaser of a lot a right to have an adjoining space kept open, which, under the evidence, was certainly the most important issue in relation to that branch of the case. The charge asked by the plaintiffs, which is marked “refused, believing the same as given as far as proper,” related to what facts would put the defendants upon notice of the dedication or easement. Following this is a charge asked by the plaintiffs, which is not signed by the judge as either given or refused, which sought to have the jury instructed that Boring & Kennard, under their deed, had acquired only such right to the north half of lot 6 as the company had at the time of the execution of the deed to them.

If this charge was given to the jury, as might be supposed from its being filed in the cause, it was contrary to the charge of the court which had been given previously, to the effect that if plaintiffs had acquired rights upon lot 6 by an easement or dedication and the defendants had no notice of it, and there were no facts known to them which would have reasonably put them upon inquiry, so as to have led them to a knowledge of such right, the defendants were entitled to a verdict in their favor as bona fide purchasers. This charge was erroneous, if their deed was only a quit-claim deed, under the decision of this court and of that of the Supreme Court of the United States, as well as that of other States. (Rodgers v. Burchard, 34 Tex., 453;Oliver et al. v. Piat, 3 How., 410;Van Rensselaer v. Kearney et al., 11 How., 322.)

If it can be construed that the statement of Hauser, the president of the company, written under the deed to Holt & Gilchrist, conveyed an easement, and that it was finally conveyed back to the company after the defendants' purchase by the deed from Womack, Luckett & Womack, that would not vest any right in defendants through a quit-claim deed further than that possessed by the company when it conveyed to them. (Dikes v. Miller, 24 Tex., 425; Same v. Same, 25 Tex. Supp., 290; Boge v. Shoab, 13 Mo., 380;Cadiz v. Majors et al., 33 Cal., 288;McCrackin v. Wright, 14 Johns., 194;Jackson v. Winslow, 9 Cow., 18.)

If, however, a right of easement attached to lot No. 7 in the original sale of it, it applied to all parts of it adjoining lot No. 6, and would pass to a part of it, under a deed in ordinary form, as that made by Pegues & Co. to the plaintiffs for a part of lot 7, which did for sixty feet adjoin lot No. 6. (Wash. on Easements, p. 36, sec. 15.)

The deed of the Texas Pacific Railroad Company to the defendants being in the terms above recited, is in form a quit-claim deed, notwithstanding there is in it a special warranty of the title against the claim of all persons claiming by, through, or under it. Where the deed assumes to convey the land and not merely the title, such as it is that the vendor has in it, and there is a general warranty, the deed not only imports a bona fide conveyance in reference to the subject of the sale and purchase designed thereby to be vested in the purchaser, but it will carry any after-purchased rights or title that may be acquired by the vendor, thereby avoiding a circuity of action on the general warranty. (2 Hilliard on Real Prop., 423, sec. 102; Jackson v. Winslow, 9 Cow., 18.)

It is stated in Bouvier's Institutes that a quit-claim deed has with us...