Green v. City of San Antonio

• Decision Date: 14 September 1955
• Docket Number: No. 12882,12882
• Citation: 282 S.W.2d 769
• Parties: Mrs. Rena Maverick GREEN et al., Appellants, v. CITY OF SAN ANTONIO et al., Appellees.
• Court: Texas Court of Appeals

Page 769

282 S.W.2d 769

Mrs. Rena Maverick GREEN et al., Appellants, v. CITY OF SAN ANTONIO et al., Appellees.

No. 12882.

Court of Civil Appeals of Texas, San Antonio.

Sept. 14, 1955.

Rehearing Denied Oct. 19, 1955.

Hubert W. Green, Hubert W. Green, Jr., San Antonio, for appellants.

Carlos C. Cadena, City Atty., San Antonio, Bernard F. Ladon, Carl Wright Johnson, George W. Krog, Chester H. Johnson, O. D. Hite, San Antonio, for appellees.

PER CURIAM.

Mrs. Rena Maverick Green and the other appellants herein instituted this suit against the appellees, City of San Antonio and H. B. Zachry, Trustee, in the form of a trespass to try title to a block of land situated in downtown San Antonio and generally referred to as Travis Park or Travis Square.

Travis Park is bounded on the West by Navarro Street, on the North by Pecan Street, on the East by Jefferson Street, and on the South by Travis Street. Appellants actually assert title to only the east two-thirds of Travis Park, being that part of the Park which lies within an ancient Spanish Grant known as the Miguel Losoya Suerte #24. They assert title as some of the descendants and heirs of Samuel A. and Mary A. Maverick. It is admitted by all parties that Travis Park has been maintained by the City of San Antonio for approximately one hundred years as a public park.

The east two-thirds of Travis Park will hereafter be referred to as 'subject property,' H. B. Zachry, Trustee, as 'Zachry,' the City of San Antonio as 'City,' the plaintiffs below as 'Appellants,' and Samuel A. Maverick and his wife, Mary A. Maverick, as the 'Senior Mavericks.'

On October 15, 1953, the City entered into a contract with Zachry authorizing Zachry to construct and maintain a subsurface automobile parking garage, together with other facilities underneath Travis Park. Appellants have brought this suit, in truth and in fact, not for possession of the subject property but to secure a declaratory judgment to the effect that they own the fee simple title to it, and to secure an injunction against the City and Zachry preventing them from building and maintaining an automobile parking garage thereunder.

Appellees have suggested that a statutory suit of trespass to try title does not lie, because appellants are admittedly not entitled to the present possession of the subject property and are merely seeking to prevent the City and Zachry from making any use of the property other than for park pursoses. We are well aware of the general rule that trespass to try title suits are for both the title and possession of land, and unless plaintiffs are entitled to the present possession of property ordinarily they cannot properly maintain such a suit. 41-A Tex.Jur. 532, §§ 19 and 20. However, there are exceptions to the rule that a plaintiff to successfully maintain such a suit must show himself to be entitled to immediate possession of the land. Cocke v. Texas & N. O. R. Co., 46 Tex.Civ.App. 363, 103 S.W. 407, error refused. We conclude, under appellants' contention that they are the owners of the fee simple title to the land, subject only to an easement in the City to use the surface thereof for park purposes, and that the City and Zachry are about to appropriate the subsurface to their own use and thereby interfere with appellants' fee simple title, appellants are entitled to maintain this cause of action in its present form, although they are admittedly not entitled to the immediate possession of the subject property.

Appellants do not contend that they have shown title in themselves from the sovereignty of the soil, but they do contend that they have deraigned title from a proven common cource, as is provided for in Rule 798, Texas Rules of Civil Procedure. The City and Zachry have in no way admitted or pled a common source of title, so the burden of proof was upon appellants to prove by a preponderance of the evidence that appellants and appellees are claiming the subject property from a common source. Appellants in order to meet this burden have attempted to prove that the Senior Mavericks are the common source of title.

The evidence fails to show that the Senior Mavericks were the common source of title. Appellees entered a plea of not guilty and also pleaded the three, Five, ten and twenty-five year statutes of limitation. It is admitted by all parties that the City has been in possession of the subject property for approximately one hundred years, using and maintaining it as a public park.

Appellants' theory of common source is that prior to 1860 the Senior Mavericks were the owners of the subject property, and that on or about that date they granted an oral implied easement to the City to use the surface of the subject property for park purposes only, and that the City accepted such easement and went into possession of the property under such easement and has held such possession for approximately 100 years, and that therefore the City's possession and use of the property has never ripened into any title to the property, by limitation or otherwise, but such possession by the City remained as it began, only as an easement, and that as heirs of the Senior Mavericks appellants inherited the fee simple title to the property, subject only to the easement for park purposes held by the City. The effect of this contention is that the City never had any title to the subject property. We have serious doubt if the appellants can prove common source of title by proof that the City has no title to the subject property. See Garcia v. Garza, Tex.Civ.App., 161 S.W.2d 297. This is in the nature of attempting to win on the weakness of the appellee's title rather than to prove a common source of title. Appellants must win, if at all, upon the strength of their own title and not upon the weakness of that of appellee. 41-A Tex.Jur. 665, § 138. It is true that a plaintiff is not bound by evidence introduced by him showing that a defendant claims title from a common source (41-A Tex.Jur. 708, § 165), but to prove common source of title the plaintiff must offer evidence connecting the defendant's title with the alleged common source. 41-A Tex.Jur. 706, § 164. This is not accomplished by showing the defendant has no title. Garcia v. Garza, supra. The City in no way asserts title from the Senior Mavericks and appellants offer evidence that the City has no right to claim such a title. The City does assert limitation title by possession for approximately one hundred years, which possession is admitted. The City also asserts title from the King of Spain, under the presumed or lost grant established in Lewis v. City of San Antonio, 7 Tex. 288.

However, it may be that a showing that the City went into possession of the subject property under an implied oral dedication of an easement for park purposes only, would be sufficient to show a common source of title, but, even if this be true, we are still of the opinion that a common source of title is not shown by the evidence, because it fails to show such implied dedication by the Senior Mavericks and an acceptance of such dedication by the City.

The evidence fails to show that the Senior Mavericks were ever in possession of the subject property, ever claimed title thereto, or ever did any act showing an intention to dedicate the property to the City for park purposes. This situation calls for a full discussion of the evidence introduced by appellants. Appellants offered in evidence what they describe as documentary evidence showing dedication by the Senior Mavericks, together with oral testimony by three witnesses tending to show, by general reputation, that in about 1860 samuel A. Maverick dedicated the subject property to the City for park purposes only. Some of this documentary evidence is taken from proceedings in the case of Sabariego v. Maverick, 1888, 154 U.S. 261, 8 S.Ct. 461, 31 L.Ed. 430, and these documents and their effect on this case will be taken up later. We will first discuss evidence which has no connection with the Sabariego case.

Appellants' specific theory of this case is that the Senior Mavericks at one time owned an ancient Spanish land grant known as the Miguel Losoya Suerte #24, and that two-thirds of what is now known as Travis Park lay within this ancient grant; that the Senior Mavericks made an implied oral dedication of the subject property to the City of San Antonio for park purposes, granting only an easement, or a right to use this property, and retaining the fee simple title in themselves; that the City accepted this dedication and went into possession of Travis Park under this dedication, and therefore has no title to the property other than an oral easement to use the property for park purposes; that appellants, as descendants of the Senior Mavericks, inherited the fee simple title retained by the Senior Mavericks, and thus have a justiciable interest in the present lawsuit.

Appellants admit title cannot be proved by general reputation, but contend that dedication may. It occurs to us that dedication is not what appellants are attempting to prove by reputation, but rather ownership of the fee simple title to the subject property. It is admitted by both sides that Travis Park has been maintained as a city park by the City of San Antonio for approximately one hundred years, and thus there can be no issue as to whether the subject property has been dedicated to park purposes. City of Tyler v. Smith, 151 Tex. 80, 246 S.W.2d 601. What appellants are interested in proving is that the subject property was dedicated by the Senior Mavericks and that they retained the fee simple title thereto. It is an indirect attempt by appellants to prove ownership by general reputation, which they admit they cannot do directly.

In most cases where the question of dedication, vel non, is involved the real issue is whether the property has actually been dedicated to a certain use, but here there is no such issue. It is admitted that the subject...