Lovett v. Harris County, 15705

• Decision Date: 31 December 1970
• Docket Number: No. 15705,15705
• Citation: 462 S.W.2d 405
• Parties: John W. LOVETT et al., Appellants, v. COUNTY OF HARRIS et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 405

462 S.W.2d 405

John W. LOVETT et al., Appellants, v. COUNTY OF HARRIS et al., Appellees.

No. 15705.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

Dec. 31, 1970.

Rehearing Denied Jan. 28, 1971.

Kirchheimer & Kirchheimer, Houston, for appellants; Theodore R. Kirchheimer, Houston, of counsel.

Joe Resweber, County Atty., Charles F. Mitchell, Gus Drake, Asst. County Attys., Houston, for appellees.

PEDEN, Justice.

Appeal from the denial of a mandatory injunction by which the appellants sought to have removed a fence placed by Harris County on a strip of its land which separates Fannin Street in Houston from some lots apparently owned by the appellants. Trial was to the court without a jury, and when the appellants rested, the trial court denied the relief sought.

The appellants assert that as owners of several lots in Knight's Main Street Addition, a recorded subdivision in Harris County, they are entitled to have removed a chain-link fence, erected by Harris County in 1963, that is more than six feet tall. The fence runs in a northerly and southerly direction .95 inches west of the west boundary of the Addition and 15.65 feet east of the easternmost part of the curb on the east side of Fannin Street. There is one opening in the fence between the Addition and Fannin St.; it permits Naomi St. in the Addition to intersect Fannin. The entire area in question is within the City of Houston, Harris County, Texas.

The fence is located on a tract of a little more than 20 acres conveyed to Harris County by the Trustees of the Hermann Hospital Estate on December 8, 1961.

The Commissioners Court of Harris County has refused to remove the fence in response to a written request and will not permit three streets in the addition to be opened into Fannin St.

The Harris County Domed Stadium is located a few hundred feet in a northwesterly direction from the Addition, and where Naomi St. crosses Fannin there is an entrance on the west side of Fannin into the stadium parking lot, through the chain link fence that has been erected on the west side of Fannin St. The Domed Stadium is leased to the Houston Sports Association, a corporation.

The appellants' first four points of error state that the trial court erred in holding 1) that as a matter of law the plaintiffs (appellants) as owners of property on the Fannin St. right of way did not have a right of ingress and egress from their property to Fannin St., 2) that as a matter of law the appellants had no right of ingress and egress from their property to Fannin St. by way of the three streets in the Addition when the City of Houston had by motion extended those streets into the existing pavement on Fannin Street, 3) that the fence denying access to Fannin Street did not constitute a taking of the appellants' property within the meaning of Article I, Section 17, of Texas Constitution, Vernon's Ann.St. and 4) that such fence denying access by way of the three streets in the Addition as extended by the motion of the City of Houston did not constitute a taking of the appellants' property within the meaning of Article I, Section 17 of the Texas Constitution.

The appellants, as movants in the trial court, had the burden of proof. No findings of fact or conclusions of law were requested or made, so we cannot say that the trial judge necessarily held with respect to all of these matters as the points of error assert that he did. His decision may well have been based, in part, on the appellants' failure to sustain their burden of proof as to some of their allegations.

The deed by which fee title to the 20.6752 acre tract was conveyed to Harris County contained these provisions after the granting clause:

'Express mention is made that Grantors have agreed to make this sale and conveyance in reliance upon the representations by Grantee that the property is being purchased with the intention of extending Fannin Street between the proposed South Loop and Old Main Street Road, with such extension to run in a North-South direction along the Eastern side of the property described above, with the remaining Western Portion of said property to be used for street purposes or included in a park and stadium site lying along the West side of said property.

'It is expressly stipulated and provided that as a part of the consideration for this conveyance, Grantee has agreed and does agree by its acceptance hereof that Grantee will, within three (3) years after this date, complete the construction of a new concrete street along and across the property as provided in the foregoing paragraph (of a quality equal to or better than the minimum specifications currently prescribed by the City of Houston for major thoroughfares), at least forty-four feet in width, with concrete curbs and gutters, and that the entire cost and expense of so constructing and installing such street, curbs and gutters shall be borne and paid by Grantee, without charge, levy or assessment for any part of the costs thereof being made against Grantors or their successors or assigns as owners of any lands now owned by Grantors which are situated adjacent to the property or adjacent to said Old Main Street Road; provided, of course, that nothing herein shall be construed to prohibit Grantee or other public authority from levying or assessing costs of constructing or installing such street, curbs and gutters against adjacent property owners (if any there be) Other than Grantors or Grantors' successors or assigns.

'Further, it is expressly stipulated and provided that Grantors reserve and except to Grantors, their successors and assigns, as owners of land adjacent to the aforesaid property (to the extent that the lands now owned by Owners are adjacent to any part of such property), free rights of ingress and egress to and from the property for purposes of access to and from the aforesaid street to be situated on a part of said property.'

It is undisputed that Fannin St. as extended by Harris County across the property acquired from the Hermann Hospital Estate is located 16.6 feet west of the west line of the Addition and does not abut on the Addition at any point. The record does not reflect that any of this strip 16.6 feet in width has ever been devoted to street purposes (except where Naomi St. crosses it). No evidence is in the record to show that any of the appellants is in any way privy to the deed from the Hermann Hospital Estate, so they have not established that they are entitled to benefit from the express reservation in the deed to the grantors, their successors and assigns, of the right of free ingress and egress to and from Fannin St. as...