Pierce v. Southern Pacific Company, 4583
| Decision Date | 05 January 1967 |
| Docket Number | No. 4583,4583 |
| Citation | 410 S.W.2d 801 |
| Parties | William T. PIERCE et ux., Appellants, v. SOUTHERN PACIFIC COMPANY et al., Appellees. . Waco |
| Court | Texas Court of Appeals |
Moore & McCarty, Ennis, for appellants.
W. T. Satterwhite, Ennis, Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case, Dallas, Forrester Hancock, Waxahachie, for appellees.
Plaintiff appeals from an order sustaining defendants' plea in abatement and dismissing the action on the ground plaintiff had no justiciable interest in the subject matter of the litigation. We affirm.
Plaintiff plead that in 1947 defendant Southern Pacific Company, as owner, dedicated a two-block area of its right-of-way in the City of Ennis for park purposes and as a public memorial to its employees who died in World War II; that Southern Pacific purchased and erected a monument, and named the park for plaintiff's son who was the first war casualty among its employees- ; that the park and monument were intended to be a memorial to plaintiff's son and others who sacrificed their lives in the war; that plaintiff had attended dedicatory exercises before a large audience at the railroad's invitation, and the park and monument had 'a special place in plaintiff's heart and life,' and 'sacred memories were awakened in viewing the spot where the memorial stood and where the park was located.'
It was alleged the railroad and other defendants were using the park for purposes inconsistent with the dedication by removing grass and trees and replacing them with gravel and scrap roofing material, alleged to constitute a nuisance; that they were using portions of the park site for a used car and parking lot; and that they had removed the monument to another location in the park. Plaintiff pleaded in the alternative that she asserted a right of action as a class representative. Injunction was sought restraining the sale or use of the area for any other than park purposes. There was evidence indicating that the City of Ennis took no formal action on plaintiff's invitation to join as party plaintiff in the action.
Plaintiff relies, as authority for the right to assert the action, on a series of cases applying the injunctive remedy to an inconsistent use of property devoted to cemetery purposes. In the cases cited, however, the cemetery was owned by private associations, or plaintiffs were trustees or owners of private property rights in the cemetery. These decisions have no application here, where the land is alleged to have been a public park and plaintiff admits there are no property rights involved.
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