Greenway Parks Home Owners Ass'n v. City of Dallas

• Decision Date: 26 March 1958
• Docket Number: No. A-6580,A-6580
• Citation: 312 S.W.2d 235,159 Tex. 46
• Parties: GREENWAY PARKS HOME OWNERS ASSOCIATION, Petitioner, v. CITY OF DALLAS, Respondent.
• Court: Texas Supreme Court

Page 235

312 S.W.2d 235

159 Tex. 46

GREENWAY PARKS HOME OWNERS ASSOCIATION, Petitioner, v. CITY OF DALLAS, Respondent.

No. A-6580.

Supreme Court of Texas.

March 26, 1958.

Rehearing Denied April 30, 1958.

Bowyer, Thomas, Crozier & Harris, William W. Sweet, Jr., Connie C. Renfro, Dallas, for petitioner.

Henry Kucera, City Atty., Dallas, for respondent.

Henry Akin, Dallas, for Mrs. Rhea Clark.

Leake, Henry, Golden & Burrow, Hawkins Golden and Wm. Burrow, Dallas, for amici curiae John M. Stemmons and others.

CULVER, Justice.

Greenway Parks Home Owners Association, a corporation, sued Rhea H. Clark and Louise Timmerman, successors to all rights, title and interest reserved in the developers of Greenway Parks, in trespass to try title to a certain tract of approximately seven acres. The City of Dallas intervened claiming title by dedication and limitations. The original parties to the suit, the petitioner, Greenway Parks Home Owners Association, and the defendants, Clark and Timmerman, entered into an agreement by the terms of which the latter conveyed all of their rights, title and interest to Greenway Parks Home Owners Association. Accordingly judgment was rendered for the Association and against the defendants, Clark and Timmerman.

The trial proceeded on the issues raised between the City of Dallas and the Association resulting in a judgment against the City and for the Association. The Court of Civil Appeals reversed and rendered awarding title to and possession of the tract to the city of Dallas. City of Dallas v. Clark, 306 S.W.2d 742. We are of the opinion that the Court of Civil Appeals erred in so holding, and that the judgment of the trial court should be affirmed.

In 1928 Drane and Stephenson subdivided into a residential addition a large tract lying north of and outside the city limits of Dallas and filed a plat with the county clerk showing the area in lots and blocks with streets, parkways and parks. The six parks were lettered 'A' to 'F' inclusive. The property here in controversy is 'A Park,' considerably larger than the others, and embraces all of the addition lying east of the railroad tracks. The dedication accompanying the plat, ¹ described te subdivision as 'Greenway Parks, an addition to the City of Dallas, Texas,' reads in part as follows:

'Those parts only of the streets and avenues as shown on the Map between curb lines, suitable for vehicular traffic are hereby dedicated to the public, and such dedication on said map or existing, lying between curb lines or elsewhere, and it is expressly stipulated herein that all sidewalks, parks, private parks, parkways, park spaces and walks for entrance to parks are not dedicated to the public but same are in all things reserved in the grantors F. N. Drane and J. P. Stephenson, their heirs, administrators, executors or assigns, and any indulgence of said grantors to the public in regard to the use of same shall never be construed as a prescriptive dedication or grant of any kind or character and same shall be construed as a mere license, revocable at will, excepting that the lot owners in said addition are to have the irrevocable right to use said sidewalks as a private way of ingress and egress from their said property and to construct an entranceway from the curb line of the street which the lot faces, to their lots, but no such entrance is to be constructed from Greenway Boulevard, and excepting further that the property above mentioned herein reserved to the grantors and not dedicated to the public shall never be used by grantors or their heirs, administrators, executors or assigns, for any other purpose or purposes than those designated on the plat, excepting the part known as Block B, which may be used by grantor for field office purposes; provided, however, that when and in case the owners of the lots in the several installments of Greenway Parks, shall vote to discontinue the maintenance charge against said lots as provided for in the respective deeds of conveyance from grantors of said lots, then said sidewalks, parks, parkways, park spaces, and walks for entrance to parks, shall be and are hereby dedicated to the public for the respective uses and purposes as designated on the plat, but in such event, spaces designated on the plat as private parks, shall be and vest for the sole use and benefit of the owners of lots abutting on said private parks, respectively.'

At the same time Drane and Stephenson filed an instrument entitled 'Declaration as to Maintenance Fund of Greenway Parks Addition,' providing that the maintenance fund may be used for the following purposes:

'For lighting, improving, and maintaining the streets, sidewalks, play parks, parks, private parks, and parkways, including all grass and planted areas within the boundaries of said streets, sidewalks and parks; for planting trees and shrubbery and the care thereof; for the care of vacant property, removing grass and weeds; for collecting and disposing of garbage, ashes, rubbish and the like; for employing policemen and watchmen; for expenses incident to the enforcement of building restrictions, conditions, obligations, reservations, rights, powers and charges; and doing any other things necessary or desirable in the opinion of the grantors, to keep the property neat and in good order, or which in the opinion of the grantors may be of general benefit to the owners and occupants of the land included in said Installment.'

This declaration fixed a maximum annual maintenance charge to be levied against the lot owners, based on the number of square feet in the lot, and provided that these charges be secured by a lien upon the lots and payable to grantors annually in advance. The declaration reserved to the grantors the option of organizing a 'Greenway Parks Home Owners Association' to be composed of lot owners in the addition and of transferring and assigning to that Association the authority to collect and expend the maintenance fund.

In 1941 certain of the lot owners in the addition petitioned for annexation to the City of Dallas. Others in opposition filed a counter petition. At the City Council's suggestion a vote was had among the property owners on this question and a majority favored annexation. The City then by ordinance in 1942 annexed the entire Greenway Park Addition.

After annexation the parcel of land described as 'A Park' was listed as a public park by the City authorities. Up until 1950, according to the evidence, at various times the City of Dallas mowed the grass and weeds as a health and fire protection measure, trimmed some of the trees and shrubbery that interfered with street traffic, drained stagnant waters that collected and at one time erected a barricade to keep out vehicular traffic.

In 1950 the Dallas Park Department made a written agreement with the Park Cities ² Y. M. C. A. authorizing the use of this tract for athletic and playground activities with the condition that the Y. M. C. A. should be responsible for the upkeep of the park area. The term of this agreement was for one year with the right of extension for additional one-year periods, but no extension after three years from date. Under this agreement the Y. M. C. A. installed some equipment, laid out baseball diamonds, erected backstops and football goal posts. It supervised play, tended the grounds, and kept the grass mowed. The City of Dallas itself has taken no care of the property since 1950. Some consideration had been given by the City Park Board to the construction of a swimming pool on this tract, but no decision was taken on that matter up to the time of the trial. No ad valorem taxes had been rendered or paid on this tract by petitioner or anyone else nor had any taxes been levied or assessed by the City of Dallas.

The testimony as to the collection from the lot owners and expenditure of the maintenance fund is rather sketchy. Some lot owners paid and some did not. The evidence does not disclose affirmatively that the collection of these charges was ever wholly abandoned, and certainly the lot owners had not expressly so voted, but to the contrary it appears that collections and expenditures continued up to the time of the trial. It is undisputed, however, that none of the proceeds from this source have ever been spent on the maintenance or development of 'A Park'.

The Court of Civil Appeals in its majority opinion sustained all of the City's contentions: (1) that the filing of the plat and the terms of the dedication constituted an express dedication of the park to the public, principally for the reason that the recited reservations in the dedication are void as against public policy; (2) that when the property owners voted in favor of annexation they thereby in effect voted to discontinue the maintenance tax; (3) that petitioner and the property owners elected to abandon the maintenance tax by entering into a contract of purchase and sale of the property with the defendants, Clark and Timmerman with the intention of diverting the property to commercial use and thus effected a dedication of the property to the public; (4) the City had acquired a fee simple title to the property under the 3, 5 and 10-year statute of limitations and by prescription; (5) that the property owners are estopped from challenging the City's title to the 7-acre tract.

This case was tried to the Court without the aid of a jury and although no findings of fact or conclusions of law appear in the record, all disputed questions of fact must be resolved in support of the trial court's judgment. Thus for the City to prevail it must show dedication to the public or title as a matter of law.

On the first point the City contends that the developers of this addition fully intended that it would ultimately be incorporated into the City of Dallas, citing the designation in the dedication as 'Greenway Parks, an addition to the City of Dallas,' and that the maintenance charges were to provide for...