Peden v. Crenshaw

• Court: Texas Court of Appeals
• Writing for the Court: Eidson
• Citation: Peden v. Crenshaw, 81 S.W. 369 (Tex. App. 1904)
• Decision Date: 04 April 1904
• Parties: PEDEN v. CRENSHAW et al.<SMALL><SUP>*</SUP></SMALL>

81 S.W. 369

PEDEN v. CRENSHAW et al.^*

Court of Civil Appeals of Texas.

April 4, 1904.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

Action by Ella F. Peden against C. R. Crenshaw and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Don A. Bliss, for appellant. C. R. Crenshaw and E. F. Brown, for appellees.

EIDSON, J.

On the 13th day of October, 1902, appellant filed suit in the district court of Grayson county, Tex., against appellee C. R. Crenshaw; and on April 24, 1903, she amended her petition, making appellee J. H. Berry a party defendant also. In both her amended and original petitions she alleged, in substance, that she was, and had been for a number of years, the owner of a certain tract of land situated in the city of Sherman, in said county, being the north 75 feet of lot No. 1 in block No. 4 of G. W. Bond's supplement to said city, which said block was block No. 3 on the original plat of said supplement, as recorded in the deed records of said county, describing said tract by metes and bounds. She further alleged that at the time said supplement to the town of Sherman was first platted, and the plat thereof spread upon the record of deeds of said county, an alley 15 feet wide was laid off adjoining and immediately north of her said tract, which said alley was for the use of the public, and that the lots of land composing said supplement, including appellant's tract, were sold with reference to said alley so located, and that the said lots were bought by purchasers thereof with reference to the location of said alley. Appellant further alleged that the said alley was used by the public, and by the owners of the lots adjacent thereto, for a period of over 20 years, for the purpose of travel and of hauling and driving over same to and from said lots; further, that said alley was and is the only means of access from the outside to her tract from the north. Appellant further alleged that about the 1st day of June, 1902, the appellees, and each of them, obstructed said alley by constructing a solid board fence, about 10 feet high, which incloses said alley, and shuts off all ingress to and egress from her said lot from the north, and prevents the public from using said alley, causing her great inconvenience by so shutting off ingress to and egress from her said lot, and by shutting off from her premises all the breeze from the north during the summer, thereby causing great discomfort to her and her family. She further alleged that the said inclosure of said alley decreased the value of the use of her said premises in the sum of, to wit, $100, and damaged her, by reason of the inconvenience and discomfort thereby caused, in the further sum of $200, and that, if said obstruction should be allowed to continue, her said lot would be depreciated in value, to wit, $500. She sought to recover her said damages, to perpetually enjoin the appellees, and each of them, from maintaining said obstruction of said alley, and to compel them to remove said obstruction. She also prayed for general relief. Appellees pleaded a general denial, the statutes of limitation of five years, not guilty, and specially that the city council of said city of Sherman had made an order closing said alley, and had sold and conveyed said alley to the appellee Crenshaw, and that appellee Berry had inclosed said alley under a lease from the said Crenshaw. Appellant excepted to so much of said answer of appellees as set up the sale by the city of Sherman of said alley to the said Crenshaw on the ground that it was not shown that said city had any authority to sell and convey said alley. The court took this exception under advisement in considering the whole case, and virtually sustained it by its conclusions of law. The case was tried before the court without a jury, and judgment was rendered in favor of appellees, sustaining their defense of the statute of limitation of five years.

The court made and filed conclusions of fact and law which are as follows:

"The court finds: That Mrs. Ella F. Peden, plaintiff, and those through whom she claims, had a good and perfect title to the lot situated in Sherman, Texas, and described in her petition. That plaintiff moved on said lot on or about November, 1901, and has occupied it up to the present time. That Mrs. Coulter, from whom she purchased said lot, occupied it by her tenants prior to purchase of plaintiff. That lying adjoining said lot on the north is a fifteen-foot alley, running the entire length of said lot, and which alley extends the entire length of C. R. Crenshaw's lot, which lies immediately west of the Peden lot, from which it is separated by an alley, north and south. That the alley running along the north side of said Peden lot, was an open alley prior to 1895, and for twenty years or more was used by the public generally, but there is no proof before the court that said alley was ever worked by the city of Sherman, and no official map of the city of Sherman was introduced in evidence with said alley on it. That during the year 1895 the city of Sherman, for the purpose of opening and extending Brockett street, in said city, next to said alley, sold and executed a deed to said alley to defendant C. R. Crenshaw, so far as said alley extends along the north side of the lots of plaintiff and defendant, and that said Crenshaw, immediately after his purchase from the city of Sherman of the alley aforesaid, placed his deed on record, and has paid taxes on the same up to this time, and that his record of said deed, possession of said lot, and payment of taxes was for a period of over five years prior to the commencement of this suit, and that the original petition in this suit was filed on the 13th day of October, 1902, in this case. That the possession of said alley by Crenshaw was in this way: He fenced and inclosed within his yard that portion of said alley which adjoins his own lot on the north, and he erected posts eight feet apart on that portion of said lot [alley] which adjoins Mrs. Peden's lot on the north, and he placed a post in said alley, in the middle of same, at the east and west ends of said alley, where the same adjoins plaintiff's homestead, and that said inclosure and said posts have been placed there more than five years next before the commencement of this suit, and were placed there before plaintiff bought her lot. That no wire or planks were placed on the posts around the alley on the north side of Mrs. Peden's lot by Crenshaw, but merely the posts were left standing there on the north line in controversy, and a post in the center of the alley at each end thereof. That Crenshaw paid the city of Sherman $400 for the portion of said alley which was deeded to him by said city, and that said $400 was used in part payment for the extension of Brockett street, which runs east and west and adjoining said alley, and which street opposite plaintiff's lot on the north was not in existence before the sale of said alley. That the city of Sherman had no title or authority to sell said alley to said Crenshaw. That said city never got the permission of all owners having lots adjoining said alley to close the same prior to the attempted sale and closing up of said alley by Crenshaw, but got permission of all owners, except Mrs. Coulter the vendor of plaintiff, who owned the lot a this time. That no record of any of the proceedings which resulted in the sale and closing up of said alley was entered of record in any minutes of the city council of the city of Sherman, and that no notification by the city...