Oswald v. Grenet

• Decision Date: 01 January 1858
• Parties: H. F. OSWALD v. HONORE GRENET.
• Court: Texas Supreme Court

22 Tex. 94

H. F. OSWALD

v.HONORE GRENET.

Supreme Court of Texas.

1858.

A setting apart, or dedication to public use, of any part of a town, need not be by deed, nor need it be evidenced by the use of it having been continued for any particular length of time. It is sufficient, if there be an unequivocal act or declaration of the proprietor, showing the intention of dedication, and that others have acted in reference to, and upon the faith of such manifestation of intention.

If the owner of a town exhibit a map of streets or public squares, and sell lots with reference to such map, or calling, as boundaries, for streets not opened, this operates as an immediate dedication of such streets and squares to public use; and the purchasers of such lots have a right to have the streets thrown open forever.

Where town property is donated to the public, on condition that it be used for a special or specific purpose, it does not follow that it is immediately to be thus used or appropriated by the public. When this should be done, depends upon the nature of the donation, and the condition of the public to be benefitted by it.

An abandonment of a donation to the public, by non-user, will not be presumed from the lapse of less time than would raise the presumption of a grant; and the time will not commence to run, until the period has arrived, when the property dedicated ought to be used for the purposes for which it was specially set apart.

APPEAL from Bexar. Tried below before the Hon. T. J. Devine. This action was brought by the appellee to compel the appellant to desist from the use and occupation of a small triangular piece of ground in the city of San Antonio, and remove therefrom a building placed thereon by appellant; which ground was claimed by the appellee to have been, by the original proprieter of that part of the town, dedicated to the public. The appellant denied the dedication, and claimed the ground by purchase.

The cause was tried, and there was a verdict and judgment for the appellee, which was reversed by this court in 1855 (as reported in 15 Tex.), and remanded. After the case went back to the court below, the plaintiff (appellee) amended his petition, by averring that the land or lot in controversy, in the original survey and plan of that part of the city of San Antonio, where it is situated, was not marked as a town lot, but was left as an open space, to be used in common by the public; that J. J. Geddings, the original proprietor of said land, declared the same should only be used for the purpose of a public well; and that adjacent proprietors, and plaintiff in particular, purchased contiguous lots, with the express understanding and declaration of said Geddings, that said open space should never be used for private purposes; and that the said land had been used by the public as a common street, or open space, with the knowledge and approval of Geddings, for more than five years preceding the commencement of this suit.

At the spring term, 1857, of the district court, the cause was again tried, and verdict for appellee, which was set aside by the court that tried the case, and a new trial granted; and at the spring term, 1858, the cause again came on, and was tried, and again a jury returned a verdict in favor of appellee, and thereupon the court rendered the judgment and decree now sought to be revised and reversed.

The charge of the court to the jury was as follows: (1st) That if the jury believed that Geddings set apart the lot claimed by defendant (appellant), to remain as an open space for the benefit of the surrounding lot owners, and that he, (Geddings), had so dedicated, or set apart, this piece of land, before or at the time of the purchase by McLeod, and that McLeod and other lot owners, purchased lots with reference to the alleged dedication, or reservation from sale or enclosure of this space, then they would find for the plaintiff. (2d) A mere offer to give this lot, provided the lot owners would dig or construct a public well on the same, was, “or¹ Geddings,” unless a well was dug, or attempted to be dug, at a reasonable time.

The defendant having moved for a new trial, which was overruled by the court, prayed an appeal to this court. It was agreed between the counsel, that the copy of the original petition, and all the record now on file in this court, up to the time of the decision and mandate of this court on former appeal, should be referred to and used, instead of a transcript of the same proceedings on this occasion. By the statement of facts in this case, it appeared that plaintiff derived title to his two lots, Nos. 21 and 22, which lie contiguous to the triangular lot in controversy, from Morris, who derived title from McLeod, who derived his title from Geddings--deeds from Geddings to other individuals for lots in the immediate vicinity were also exhibited by plaintiff--a certified copy of the map of Geddings' addition, from the records of the county clerk of Bexar, and the office of the city surveyor of the city of San Antonio, referred to in the deed from Geddings to McLeod, were read, to which defendant objected, the objection was overruled, and the ruling of the court excepted to.

Plaintiff then proved by Charles Morris, that he sold the two lots, 21 and 22, to plaintiff--Morris lived in the neighborhood, and was one of the first settlers there--Geddings told Morris, that he, Geddings, had left that triangular space for a public well. Before Morris sold to plaintiff, he offered to buy the vacant triangular space from Geddings, but Geddings told Morris that he would not sell it, that he had left it for a public well. Morris told the plaintiff what Geddings said, and also told the same thing to the neighbors. Plaintiff lived on the lots 21 and 22, sold to him by Morris, and had erected buildings worth from $2,500 to $3,000. A building on that open space, would obstruct the view, and be an injury to plaintiff's buildings. Morris heard what Geddings said, before he (Morris) sold to plaintiff. No well dug on the vacant space.

Plaintiff also proved by Donenhouer, that witness had lived near plaintiff's residence six or seven years. The triangular space had always been open, up to the time a house was put on it by defendant. A house there would obstruct the view from plaintiff's houses, and injure their value materially to a man in plaintiff's business as a merchant, say $1,000. The house, put there by defendant, is a small frame house witness bought near there six years ago; plaintiff began building a year after, and was building when defendant built the small frame house, on the triangular space. Plaintiff proved by Beckman, that Geddings said, he would give the open space between Nacogdoches, Crockett, and Bonham streets, for a public well, if the neighbors would put one there. There was no building on the open space, until defendant put one there, which injures plaintiff's buildings on lots 21 and 22. There are streets on each side of this triangle. The neighbors never refused to make a well. Geddings once told witness, he would not sell the triangle; that it was not worth anything. He tried to sell it to witness, when defendant bought it. After defendant bought, he put posts about the space; until that time, there never was any separation or distinction, between the space and the surrounding streets.

Plaintiff proved by Huffmeyer, that plaintiff occupied lots 21 and 22, and erected valuable buildings thereon. Defendant put the house on the triangular space, when plaintiff had built his house--may not be finished. Defendant's house obstructs the view from plaintiff's house, and injures the value of plaintiff's property. Geddings told witness there was a small space of ground there, that he would give for a public well. This space was always open, until defendant put a house there. Some of the neighbors refused to put a well there, and others were willing to do it.

Most or all of the above facts were proven by other witnesses. John D. McLeod, who had purchased the two lots occupied by plaintiff, from Geddings, being dead, his testimony on a former trial, was proven by W. H. Cleveland, to have been that Geddings told him (McLeod) before he purchased the two lots, 21 and 22, from Geddings, that this triangular space should always be kept open; that there should never be any building or obstruction upon it. This was his (McLeod's) inducement to buy these lots; that he purchased with a view to the open space, and that Geddings and himself both understood that it should be vacant. That McLeod was under the influence of liquor when he testified, and had been drinking for some time previous. That McLeod on being asked if he was not under the influence of liquor admitted it, but said he was sober enough to tell the truth.

Defendant produced a deed from Geddings; and then proved by Brady, that he (Brady) bought two lots, 50 and 51, about the same time, or a little after McLeod bought; that Geddings exhibited a map, showing this triangle distinctly marked, and that Geddings told him that if they would dig a well on the lot he would give it to the public: and by Colby, that Geddings told him, in 1850, he would give the triangle if the people would dig a well on it; that it would increase the value of his unsold lots; did not know that the space was marked out; saw posts there, at the time the defendant was building.

Geddings being introduced by defendant, plaintiff objected to his competency, he being both defendant's and McLeod's warrantor; defendant released; and Geddings testified that he owned the land, and laid off the addition, including the triangular piece of ground; had a map of it made and recorded; after it was recorded, he marked the lines around the triangle; it was staked off with stakes at each corner. He proposed to give the ground for a public well, if the neighbors would dig one on it; thought it would benefit his other property; did not think h...