Oswald v. Grenet

• Decision Date: 01 January 1855
• Citation: 15 Tex. 118
• Parties: HUGO F. OSWALD v. HONORE GRENET.
• Court: Texas Supreme Court

15 Tex. 118

HUGO F. OSWALD

v.HONORE GRENET.

Supreme Court of Texas.

1855.

Where a space in the plan of a town or city, by which the proprietor describes lots sold, is left without number or designation of any kind, it is not thereby to be taken as dedicated to public use. If, in such a case, the ground were used as a common by the public, without obstruction, for several years, it would present a different case. [Same case, 22 Tex. 94;3 Tex. 288.]

Appeal from Bexar. The deeds described the lots sold, by reference to the plan as recorded in both the office of the clerk of the county court of Bexar county, and the office of the city surveyor of the city of San Antonio. The books of the county court were excluded; but the city surveyor was introduced as a witness, and produced the book of his office in which the plan was recorded. “The witness then testified that, in 1853, at the time he was elected surveyor, and the book of surveys came into his possession, there was a faint red or black line about the place in controversy. He thinks that the lines were faint red lines. The lines of the original surveys are marked in red lines. Did not know how the lines came there; nor whether they were made in ink or pencil; they do not appear at present; they appear to be scratched off. The book of surveys was open to persons coming in the office; thinks the lines were dotted, not drawn.” The addition to San Antonio was laid out in 1849. The defendant erected buildings on the space in controversy in 1853. This suit was brought to compel the defendant to abate them, and for damages. There was no proof as to the use of the space in controversy from 1849 to 1853, except that it remained unoccupied. The defendant offered to prove acts of ownership by Giddings, but the court excluded evidence of such acts, after the sale to plaintiff's vendor. The other facts are stated in the opinion.J. Waelder, for appellant. The court erred in its third charge to the jury. By reference to this section of the charge it will be seen that the court assumes a fact which ought to have been left to the jury; it assumes as a fact that Giddings, who sold to both parties in this proceeding, or those under whom they claim, sold with reference to a map, upon which the piece of ground in controversy was shown as a vacant space, neither numbered nor otherwise designated as private property. In doing this, it is believed that the court below traveled beyond its legitimate sphere, that at least the jury were misled as to a material fact in the case. That the jury were misled by the court; that they deemed themselves bound to take for granted what the court had assumed for them, is evident from the phraseology of their verdict: they say, “according to the charge,” etc. In this connection, it may be remarked that the map of the lots sold by Giddings, as recorded in the book of the city surveyor, does not sustain the assumption of the court. Upon that map the piece of ground in controversy was marked out as a lot, in the same manner in which the other lots are marked out, and in the same color of ink. In addition, this piece of ground was not only marked upon the map like other lots of Giddings, but it was staked off upon the ground, in the manner in which this is done by surveyors ordinarily. These stakes were placed upon the ground when the lots were first laid out, and had become covered with dust after so long a lapse of time.

There is, then, in this case, no proof to show a dedication to the public or to the appellee. The deed from Giddings to McLeod does not call, in its description of lots Nos. 21 and 22, for a public space as one of the boundaries. It calls for Bonham street, which runs between said lots and the ground in controversy. If Giddings had intended to dedicate this ground to the public, the deeds would describe the surrounding lots as fronting on public ground. Bonham street would not have been carried through to Nacogdoches street on the map, nor would the triangle have been staked off as it was, according to the testimony of Clements. It may be said that a dedication to public use may at times be proved by a use of land. But such use must be allowed unconditionally and fully for a period of years, and with the owner's assent. (6 Peters, 513.) Such use, however, ought to be for such a length of time that the public accommodation and private rights might be materially affected by the interruption of the enjoyment. But the dedication must also be under such circumstances as to indicate an abandonment of the use exclusively to the public by the owner of the soil. Hence there must not have been declarations made by the owner inconsistent with any dedication. (Irwin v. Dixon, 9 Howard, 30.) An adverse right of an easement cannot grow out of a mere permissive enjoyment. (The First Parish of Midford v. Pratt, 4 Pick. 222.) Had the appellant in this case been permitted to prove his own acts of ownership, exercised with the full knowledge and without objection on the part of those under whom the appellee claims title, and if he had been permitted to prove the declarations of all those parties, it would have most clearly appeared that all those acts and declarations were totally inconsistent with any dedication of the piece of ground in controversy. Again, the map itself did show this spot to be reserved ground, by the red lines marked around it. The absence of a number is immaterial. And the mere exhibition of the plan of a new street, at the time of a sale of a piece of ground, to build a house in the line of the intended street, does not amount to an implied contract to execute the improvements exhibited on the plan, where the written contract is silent on that head. (1 Sugden on Vendors, 27.) This seems to be in point in the case.

W. H. Cleveland, for appellees.

1. The recording by Giddings of said plan with streets and lots, and said square designated thereupon, and his selling by deeds referring thereto,

was a dedication of said square to the public. (Rowan's Executors v. The Town of Portland, 8 B. Mon. 232; The People v. Beaubien, 2 Doug. Mich. 256.)

2. A deed of particular form of grant was not necessary. (City of Cincinnati v. White, 6 Peters, 431; 3 Verm. 526; 6 Verm. 355.)

3. It is unnecessary that said plan should specify what was dedicated. It is sufficient that said square appears thereon as a public square, uninclosed and unincumbered, without any marks of separation, or appearance of reservation. (8 B. Mon. 232.)

4. The plaintiff Grenet having become the...