Lamar Cnty. v. Clements

• Decision Date: 01 January 1878
• Citation: 49 Tex. 347
• Parties: LAMAR COUNTY v. S. E. CLEMENTS ET AL.
• Court: Texas Supreme Court

49 Tex. 347

LAMAR COUNTY

v.S. E. CLEMENTS ET AL.

Supreme Court of Texas.

1878.

APPEAL from Lamar. Tried below before the Hon. R. R. Gaines.

Appellees, who were plaintiffs in the court below, filed their petition in the District Court of Lamar county, alleging that they were owners of property fronting on the public square of the town of Paris, the county-seat of Lamar county. That when said county-seat was located, one of the petitioners, George W. Wright, donated to said county fifty acres of land, with the express agreement that the town should be laid out with a public square, which should remain forever for the use of the public. It was alleged that the commissioners appointed to locate said county-seat did lay out the town into lots, blocks, streets, and alleys, and also a public square, and did make a map of said town on which a block was marked “public square,” and at a public sale offered the lots of said town for sale, exhibiting said plat at the time of sale with the said block of ground marked “public square.” That the sale of the lots was made with reference to the public square, and by reason of that sold for higher prices.

That soon after said sale, the said county erected upon said block a court-house, in which were the offices of the clerks, sheriff, and other county officers, and in which house were held the courts for the administration of justice. The public had been accustomed to resort to said court-house and square to hold their political and other public meetings. That the petitioners had built upon the lots fronting on the public square houses of great value, and were engaged in mercantile and other business. That their lots were more valuable and their business more lucrative on account of the public square.

That the defendants, who composed the Police Court of Lamar county, had appointed a commissioner and ordered a sale of said public square, to be used for private business, and thereby the petitioners would be greatly damaged in their business, and their property rendered less valuable, and they prayed for an injunction to restrain said sale. The injunction was granted by the court.

Defendants answered, admitting the donation by Wright, but denying the agreement for a public square. They admitted that the town was laid out and the lots sold, and alleged that the block of ground in question was reserved as a public square, upon which to build a court-house for the use of the county, and was not dedicated to public use; that the county had ever since continued in the sole and exclusive use and control of the same. And they denied that it was ever given out by the commissioners that the said block of ground should be kept for a “public square,” but that it was at the time understood that the words “public square” were used to designate the place where the court-house would be erected; that the County Court always used said ground for a court square, and having procured another lot, and built a new and commodious court-house thereon, the said block of ground was no longer needed for the purposes for which it was originally reserved, and was ordered to be sold, the proceeds to be applied to the payment of the debt incurred in the building of the new court-house. The answer denied that the plaintiffs acquired any rights in said ground, except such as were common to all citizens of Lamar county.

Defendants excepted specially to the petition; and moved to dissolve the injunction, which was overruled. On the trial, a verdict and judgment were had for plaintiffs, and the defendants appealed.

Throckmorton & Brown, for appellants.--Upon the pleadings were made the following issues:

Was the ground dedicated to the public, or reserved for the use of the county?

Did the plaintiffs, by their purchase and improvement of lots on the public square, acquire any vested right in the said square?

Did the Police Court of Lamar county have the power to sell said public square for private use?

1. To constitute a dedication to public use, the person making the dedication must have intended to dedicate it to public use, and must have abandoned the possession and control of the property to the public. (Dillon on Mun. Corps., sec. 499; Irwin v. Dixion, 9 How., 10.)

2. The County Court was charged with the duty of providing a court-house, and the use of grounds for that purpose would not be a dedication to public use. The words public square did not denote a plaza or place open to the public, but a place for erecting a court-house. Making the plat and marking public square on it, did not dedicate that ground to the public. (Westfall v. Hunt, 8 Ind., 177; City of Pella v. Scholte, 24 Iowa, 283; 16 La. Ann., 404; Pitcher v. New York and Erie Railroad, 5 Sand., (N. Y.,) 608.)

3. A court-house is a public use in the sense that it pertains to the transaction of public business, but it remains in the possession and under the control of the county, and no citizen acquires a right to its continuance. Selling lots by a county, with reference to a square reserved for court-house purposes, and marking on it the words “public square,” would not be a dedication to the use of the public. (Daniels v. Wilson, 27 Wis., 492;8 Ind., 178.)

4. The act of making and exhibiting a map with the words “public square” on it, by an individual, would be a dedication to public use, because an individual would have no use for which to reserve a public square. But such acts by a municipal corporation, as a county, would only indicate a reservation of the ground to its own use. (8 Ind., 178;27 Wis., 492.)

5. In order to constitute a dedication of property to public use, the proprietor must abandon the use, possession, and control of the property to the public, with the intent that the same shall be dedicated to public uses. (Irwin v. Dixion, 9 How., 30; 18 Iowa, 179; 5 Sand., (N. Y.,) 608.)

6. A municipal corporation may reserve for its use, in the erection of public buildings, a part of its lands; and although marked as a public square, will not thereby dedicate it to the public, nor part with control over it. Public buildings being erected upon the ground, the resort by the citizens to the buildings in transacting public business does not constitute a dedication, and the public would not acquire a vested right in the ground.

Where the original proprietor retains the possession and control of the property, there is no dedication to public use, although the public may be permitted to resort to the same for pleasure or profit. (18 Iowa, 179; Pitcher v. N. Y. & E. R. R., 5 Sand., (N. Y.,) 608; Van Ness v. The Mayor, 4 Pet., 232.)

7. The use of the words “public square” in our statutes, and their ordinary use, signify the court-house square of the county-seat. The commissioners being engaged in locating the county-seat and providing for the building of a courthouse, the use of the words “public square” was understood to mean a plat of ground reserved for a court-house. (Westfall v. Hunt, 8 Ind., 177; City of Pella v. Scholte, 24 Iowa, 283; 16 La. Ann., 404.)

8. If the plaintiffs acquired any right, it was to have the court-house continue on the block. No citizen can acquire a right in the continuance of a county-seat or public buildings. They are under the control of the Legislature. (Alley et al. v. Denson, 8 Tex., 297;Bass v. Fontleroy, 11 Tex., 698;Walker v. Tarrant Co., 20 Tex., 16;Gilmore v. Hayworth, 26 Tex., 89.)

9. The counties in Texas hold the lands conveyed to them in fee-simple, and have full power to sell without further legislative action. The title to the land in question was in Lamar county, in fee. (Paschal's Dig., art. 1051; Bell County v. Alexander, 22 Tex., 350.)

10. The county of Lamar had full power to sell the block of ground in question under the general law, and without further legislative authority. (Paschal's Dig., 1052; Bell County v. Alexander, 22 Tex., 359.)

11. When a municipal corporation, which is authorized to take and hold property for public use, has appropriated land to a particular use, which ceases to be necessary for such use, it may be sold, and adjacent property owners have no vested rights in the continuance of said use. (Van Ness v. The Mayor, &c., 4 Pet., 232;Brooklyn Park Com. v. Armstrong, 45 N. Y., 234; Pitcher v. N. Y. & E. R. R., 5 Sand., (N. Y.,) 608.)

Hale & Scott, Wright & McDonald, and Maxey, Lightfoot & Gill, for appellees.

I. We submit, that the facts clearly evidence an irrevocable dedication. The purchasers of lots fronting on this public square have covered them with valuable buildings, and having bought with reference to the square as exhibited on the diagram, and with the understanding that it would be kept open for a public use, they have acquired an easement and rights that cannot be taken away from them, neither by the courts nor by the Legislature. (Dillon on Mun. Corps., secs. 506-510; 2 Story's Eq., sec. 1544; Cincinnati v. White's Lessees, 6 Pet., 431;Beatty v. Kurtz, 2 Pet., 566; Le Clercq et al. v. Gallipolis, 7 Ohio, 218; New Orleans v. United States, 10 Pet., 734;Bissell v. N. Y. Cen. R. R., 23 N. Y., 61;San Antonio v. Lewis, 15 Tex., 393;Oswald v. Grenet, 22 Tex., 94; Ransom v. Boal, 29 Iowa, 68 (reported in 4 Am. Rep., 195); Gilmore v. Hayworth, 26 Tex., 91;Preston v. Navasota, 34 Tex., 684;Holdane v. Trustees, 21 N. Y., 474;Talmage v. East River Bank, 26 N. Y., 105;Brown v. Manning, 6 Ohio, 298, and authorities there cited.)

II. Counsel for appellant contend that a public square, laid off by a county for court-house and other public purposes, is governed by a different rule from public squares in towns or cities for other public purposes. We think that no such rule can exist in principle. If the dedicator, whether a county, town, or an individual, sells the adjacent lots with reference to such open space, and thereby induces purchasers to pay higher prices for the lots around it, and expend their money in improving the lots, they acquire rights that...