McCarthy v. City of Houston, 68

• Citation: 389 S.W.2d 159
• Decision Date: 18 March 1965
• Docket Number: No. 68,68
• Parties: Glenn H. McCARTHY et ux., Appellants, v. CITY OF HOUSTON et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 159

389 S.W.2d 159

Glenn H. McCARTHY et ux., Appellants, v. CITY OF HOUSTON et al., Appellees.

No. 68.

Court of Civil Appeals of Texas, Corpus Christi.

March 18, 1965.

Rehearing Denied April 8, 1965.

Franklin R. Navarro, Michael T. Brimble, Houston, for appellants.

John J. Wildenthal, City Atty., Joe Resweber, Harris County Atty., Houston, for appellees.

GREEN, Chief Justice.

This appeal is from a take nothing judgment based on an instructed verdict in favor of appellees City of Houston, hereafter called City, and Harris County Flood Control District, hereafter called District, defendants below. The suit, in trespass to try title, arose by reason of City erecting a bridge across Brays Bayou within the city limits partly on property previously conveyed by deed from appellants to District March 14, 1956, for a cash paid consideration of $38,958.50. This deed contained a proviso that District, its assigns or successors in office, would not, for a period of 999 years, burden the surface fee conveyed with any above-ground fences, buildings or structures, such covenants and conditions to be binding upon and observed by District as well as its heirs, executors, administrators and assigns. It was further provided that in the event of any violation or non-observance of said covenant and condition, the conveyance would be null and void, and the premises would wholly and absolutely revert to the grantors, their heirs or assigns.

It is appellants' contention on this appeal that the evidence showed, or at least raised an issue of fact, that City, at a time when it owned no manner of right or title to the land in question, did, with District's acquiescence, burden the surface fee with aboveground structures, thus rendering the conveyance null and void, and causing title to revert to appellants. The bridge having been completed long before trial and being in use as a public bridge connecting streets on each side of the bayou, appellants also prayed in their trial pleadings that City be required to remove the bridge erected by it on this property.

Since the nature of the title conveyed to District by this deed is a matter of consequence, we should here dispose of appellants contention that extrinsic evidence was admissible to show that the parties to the deed did not intend that it should convey fee title to District but that it was meant to convey only an easement to be used by District exclusively for flood control purposes. Since the instrument did 'grant, sell and convey' the 1.651 acres of land therein described to District, contained the customary habendum and tenendum clauses, with a general warranty of title, and did not in any way appear to be ambiguous in any of its terms, and required no explanation for an understanding of its provisions, we hold that the trial court correctly sustained appellees' objections to the offered extrinsic evidence. Texas Electric Ry. Co. v. Neale, 151 Tex. 526, 252 S.W.2d 451; Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154; Davis v. Bond, 138 Tex. 206, 158 S.W.2d 297; Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217; Finley v. Carr, Tex.Civ.App., 273 S.W.2d 439 writ. ref. We further hold that the portion of the deed providing for the possible reversion created a condition subsequent at most, and that title would not automatically pass to grantors in event of breach by grantee, but that the right in grantor to re-enter and retake the fee to the property must be established by suit timely filed for that purpose. Gulf, C. & S. F. Ry. Co. v. Dunman, 74 Tex. 265, 11 S.W. 1094; Lawyers Trust Company v. City of Houston, Tex., 359 S.W.2d 887; Houston & T. C. R. Co. v. Ennis-Calvert Compress Co., 23 Tex.Civ.App., 441, 56 S.W. 367, writ ref; Holmes v. McKnight, Tex.Civ.App., 373 S.W.2d 541.

The testimony discloses that shortly prior to January, 1961, City determined that it was necessary, in the proper development of its street program, that this bridge be built. Practically all of 1961 was spent by City in securing the proper engineering plans, and doing the preliminary work preparatory to the actual erection of the bridge. District did not participate in these matters, and the testimony concerning them was restricted by the trial court to the suit as against City. However, as the preliminary work developed, District engineers became aware of City's plans, as it was essential that they determine, and they did do so, that such bridge as was contemplated by City would not interfere with the proper flow of water in the bayou.

This being an appeal from a judgment based on an instructed jury verdict, we must and do view the evidence in the light most favorable to appellants. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422; Weatherford v. Lee, Tex.Civ.App., 364 S.W.2d 730, writ ref. n. r. e. Hence on this appeal we shall consider that the testimony reflects that City started actual erection of above-surface structures on this property early in December, 1961, and that prior to December 21, 1961, the date this suit was filed, Mr. McCarthy observed on a portion of the land in issue 'numerous base cement structures which were above the ground all the way across where you could then see definitely where the bridge was going to go.'

In this connection, witness L. E. Whitney, called to testify by appellants, stated that construction did not commence before February 2, 1962, and that no aboveground structures were erected prior to that date. Whitney was the official of the City in charge of actual construction of this bridge, and appellants insisted on their right to call him as an adverse witness. Attorney for City objected, and the trial court sustained such objection, declining to permit appellants' counsel to ask leading questions, and ruling that appellants were bound by his testimony and could not subsequently offer evidence in rebuttal thereof. In this we feel that the court erred. On the record, appellants should have been permitted to treat Whitney as an adverse witness. Rule 182, Texas Rules of Civil Procedure; City of Waco v. Criswell, Tex.Civ.App., 141 S.W.2d 1046; City of Houston v. Glover, Tex.Civ.App., 355 S.W.2d 757, writ ref, n. r. e.

However, for the purposes of this appeal such error is harmless and cannot be considered basis for reversal. The entire purport of appellants' efforts with Whitney, after he had testified to the February 2nd date, was to impeach and contradict him, both by his own testimony and that of others, as to the time of the erection of the above-ground structures. Since this did not become a jury issue due to the instructed verdict, and since for the purposes of this appeal we are assuming that such structures appeared on the land in December, 1961, prior to the filing of this suit, as testified by Mr. McCarthy, appellants can suffer no injury by reason of the error. Appellants' third point, raising this contention, in so far as it asserts reversible error, is overruled.

At the time Mr. McCarthy saw the construction work by City on this property in December, 1961, as he testified, proceedings were pending before commissioners by which City sought to condemn appellants' reversionary interests in the particular portion of this property needed for the bridge. Hearing was not had on these proceedings until December 26, 1961, and since appellants filed objections to the commissioners award with the county judge, City's deposit with the county clerk of the amount of the award was not filed until January 4, 1962. Ordinarily, the condemner's right of entry is determined by the time of making such deposit. Art. 3268, Vernon's Ann.Tex.Civ.St.; 22 Tex.Jur.2d Eminent Domain, p. 375.

On December 7, 1961, District was authorized by its governing board to execute, and it did execute, an instrument purporting to convey to City easement rights in the property necessary for the construction of this bridge. As evidence of District's desire and intent not to violate the conditions contained in the deed of March 14, 1956, District had inserted in this instrument the statement that it 'does not have the right and cannot convey the right to construct or erect or have constructed or erected any above-ground fences, buildings or structures.' There...