McCarver v. City of Corpus Christi
| Decision Date | 12 October 1955 |
| Docket Number | No. A-5193,A-5193 |
| Citation | 284 S.W.2d 142,155 Tex. 153 |
| Parties | Mrs. Bonnie McCARVER, Petitioner, v. CITY OF CORPUS CHRISTI, Texas, Respondent. |
| Court | Texas Supreme Court |
North, Blackmon & White, Corpus Christi, for petitioner.
I. M. Singer, City Attorney, Corpus Christi, for respondent.
The City brought this suit against Mrs. McCarver and a number of others for the purpose of removing obstructions from an alley and for damages. The suit as to Mrs. McCarver was severed. She plead a termination of the alley as to her by the ten year limitation statute. The trial court entered a summary judgment in favor of Mrs. McCarver, but upon appeal this was reversed and remanded, City of Corpus Christi v. McCarver, Tex.Civ.App.1902, 253 S.W.2d 456, no writ history, with a holding that there existed a fact issue as to adverse possession. Upon a trial on the merits a jury made the following finding 'Do you find from a preponderance of the evidence that those under whom Bonnie McCarver claims, held (whether in person or through tenant) exclusive, peaceable and adverse possession of the 20-foot alley abutting the rear of Lot 5, Block 83, of the Brooklyn Addition, using or enjoying the same for any period of ten consecutive years prior to 1939?'
Answer: 'Yes.'
Thereupon the trial court entered a judgment for Mrs. McCarver. This has been reversed and rendered in favor of the City by the Court of Civil Appeals. 275 S.W.2d 194, 195.
A subdivision plat was filed many years earlier calling for Mrs. McCarver's lot to front on a street with an alley at its rear. Apparently the alley was never used as such but was fenced in by some lot owners and the evidence establishes that for more than ten years prior to 1939 the particular section of the alley involved in this suit had a three-room rent house built in part on it which had been in constant use.
No attack is made on the original dedication of the alley. Therefore, the first question is whether or not a public alley once dedicated can be lost to public use through private encroachment and adverse user to the public purpose. We hold that prior to 1939 it could. City of Galveston v. Menard, 23 Tex. 349; Young v. City of Lubbock, Tex.Civ.App.1939, 130 S.W.2d 418, no writ history. In 1939, Art. 5517, V.A.C.S. was amended to include alleys in its prohibition against anyone acquiring rights in a road or street by adverse claim. The making or permanent and valuable improvements in the form of a rent house blocking the alley...
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