Maddox v. Maxwell, A-9373

• Decision Date: 26 June 1963
• Docket Number: No. A-9373,A-9373
• Citation: Maddox v. Maxwell, 369 S.W.2d 343 (Tex. 1963)
• Parties: H. A. MADDOX et al., Trustees of the Church of Christ of Richardson, Texas, Petitioners, v. Carroll H. MAXWELL, Respondent.
• Court: Texas Supreme Court

Page 343

369 S.W.2d 343

H. A. MADDOX et al., Trustees of the Church of Christ of Richardson, Texas, Petitioners, v. Carroll H. MAXWELL, Respondent.

No. A-9373.

Supreme Court of Texas.

June 26, 1963.

Rehearing Denied July 31, 1963.

Wynne, McKenzie, Jaffe & Tinsley, Henry Baer, Dallas, for petitioners.

Spafford, Ledbetter, Freedman, Hamilin & Gay, Warren Whitham Dallas, for respondent.

GRIFFIN, Justice.

This is a suit in trespass to try title brought by H. A. Maddox, C. L. Green, Frank C. Morris, V. L. Paul, W. C. Wallis, Sr., and W. E. Williams, Trustees of the Church of Christ of Richardson, Texas, hereinafter called plaintiffs, against Carroll H. Maxwell, hereinafter called defendant. Title to a strip of land approximately twenty feet wide along the west side of the church property is in controversy. The trial court, without a jury, found against the contention of Maxwell that the land was a public street by implied common-law dedication and rendered judgment for Maddox et al. One of the findings of fact of the trial court was that at no time did any member or trustee of the church intend to dedicate the property in controversy.

The Court of Civil Appeals, relying on Owens v. Hockett (1952), 151 Tex. 503, 251 S.W.2d 957, and City of Houston v. Hughes (1955, Tex.Civ.App.), 284 S.W.2d 249, error refused, n. r. e., has reversed and rendered judgment for respondent, holding that the strip of land in controversy was a public road or street by virtue of an implied common-law dedication and that the trial court erred in not so holding. 362 S.W.2d 147.

For the respondent to prevail in this Court, he must show dedication as a matter of law. Greenway Parks Home Owners Ass'n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235, rehearing denied, 159 Tex. 46, 316 S.W.2d 74. We cannot find support for such a holding in the facts of this case. We hold that the facts of this case show, as a matter of law, that the strip of land in question was never dedicated, expressly or impliedly, as a road or street.

At the start of the trial, the parties stipulated under Rule 266 'that plaintiffs hold the record title to the land described in their pleadings and are to recover the title and possession of said land, except to the extent that the defendant is able to prove that a part of said land is a public road or thorofare * * *.'

The Church of Christ of Richardson, Texas, of which the plaintiffs herein are the trustees, owned a tract of land, of approximately two acres, which was approximately the east part of a larger tract north of Phillips Street in the town of Richardson. Adjoining the church property on the west and also adjoining Phillips Street on the north was a tract of land owned by a Mr. and Mrs. James. The Jameses' home was on the south part of their tract along Phillips Street and was known as 329 Phillips Street. Prior to 1950, the Jameses sold the north part of their land to their son-in-law, Fred Holley, who built his home thereon. This house faced east, which was toward the adjoining church property. North of the James and Holley land was a tract of land owned by a Mr. and Mrs. Cassidy and which adjoined the north part of the church land on the west. There is a plat of this property set out in the Court of Civil Appeals' opinion and we will not reproduce it here.

Prior to 1950, the evidence is undisputed that those people who came to visit or transact business with either the Jameses, Holleys or Cassidys would drive across the church tract not occupied by the church building in varying directions so as to make tracks and trails indiscriminately across the church tract.

To remedy this condition and to protect their property, the church in 1950 decided to, and did, erect a chain link fence twenty feet east of their west line across their property. This left a twenty foot strip separated by this fence from the balance of the church property. The church at the same time erected a similar fence across the whole length of their north property line which separated the twenty foot strip from the lands lying immediately along the north end of the strip. This fence prevented any traffic north to the next street.

The Jameses entered their property from Phillips Street by first driving on the church property but near the west line thereof. The Holleys entered the Jameses' property at the same entrance, and if going to Phillips Street or coming therefrom, continued to drive on the church property and near the west line thereof until they reached their own driveway to their improvements. The Cassidys had one or more rent houses and a residence on their tracts, and in going to or from Phillips Street, drove along near the west line of the church property. The west side of the church property was covered with grass and weeds, except some authority-the record is not clear if it were the city or county-had graveled a narrow driveway leading from Phillips Street north to the Cassidy rent houses.

After the church had decided to erect its fences, and under specific directions from the church congregation, a committee of three or more of the trustees called on Mr. Holley and Mr. Cassidy to inform them of such decision. Mr. C. L. Green, one of the church trustees and one of the committee to notify the Jameses, Holleys and Cassidys, testified as follows:

'Well, people were using the property and going in various directions and damaging the property and driving trucks and cars and what have you, when it was raining and cutting ruts all over the property, and we contacted the parties who owned the property and told them that we were going to build a fence to protect our property, but we wanted to be neighbors and that we would allow them temporarily an outlet until such time as the church needed the property for their use, but we were going to build our fence on the north and tie onto our corner.'

Specifically testifying as to what the committee told Mr. Cassidy, Mr. Green testified:

'We told him we were going to build a fence to protect our property, but at the same time, to be neighborly, and to get along, we felt the Christian thing to do would be to allow him permission to use it on a temporary basis and the fence was to be a temporary thing and if ever the church should grow to the point that we needed the property that it was understood that we weren't releasing any rights whatsoever in regard to our property.'

The other committee members gave testimony of a similar nature.

The record shows that Mr. and Mrs. James were elderly and that their son-in-law attended to their business. Mrs. James testified herein by deposition and confirmed that Mr. Holley attended to their business and that she and Mr. James recognized that they were using the strip of land by and with the permission of the church; that they made no claim to use the strip adverse to the church, and that they recognized at all times that the church owned the strip and could deny them the use of the strip at any time the church so desired. Mr. Holley gave similar testimony as to his understanding as to his right to use the strip and of the church trustees visiting him and outlining his rights to use the strip.

Mrs. Cassidy testified that the church committee came to talk with Mr. Cassidy about the use of the strip-sometimes referred to in this record as Cliff Street. She said she was in the house at the time the committee talked with Mr....