Pittman v. City of Amarillo

• Decision Date: 30 April 1980
• Docket Number: No. 9113,9113
• Citation: 598 S.W.2d 941
• Parties: Floyd PITTMAN et ux., Appellants, v. CITY OF AMARILLO, Appellee.
• Court: Texas Court of Appeals

Page 941

598 S.W.2d 941

Floyd PITTMAN et ux., Appellants, v. CITY OF AMARILLO, Appellee.

No. 9113.

Court of Civil Appeals of Texas, Amarillo.

April 30, 1980.

Rehearing Denied May 28, 1980.

J. R. Hollingsworth, Amarillo, for appellants.

Merril E. Nunn, City Atty., John M. Black, Asst. City Atty., Amarillo, for appellee.

COUNTISS, Justice.

This appeal is from a judgment denying any recovery to appellants, Floyd Pittman and wife Freda Pittman, hereafter "the Pittmans," in their suit against appellee, the City of Amarillo, hereafter "Amarillo," entered pursuant to a directed verdict granted Amarillo by the trial court after the parties closed the evidence. The following two questions are presented: (1) do the Pittmans have a cause of action against Amarillo for damages caused by the plugging and removal of a portion of the Pittman's private sewer line located under a public street; and (2) are the Pittmans entitled to a free sewer tap and free sewer service from Amarillo pursuant to a 1949 easement agreement between Amarillo and the Pittmans' predecessor in title? We answer both questions in the negative and affirm the judgment of the trial court.

In 1949, O. K. Chamberlain and Anna Chamberlain executed an agreement with Amarillo, granting an easement for public sewer lines across a tract of land owned by the Chamberlains. In addition to a recited payment of $150 to the Chamberlains, the agreement contained the following paragraph:

And the further consideration of the City of Amarillo's covenant to, upon request by Grantor, provide one tap to said sewer line to be made on Grantor's premises. The free use of said tap to be restricted to the occupant of the of the (sic ) improvements now located on the tract above-described, and subject to the City's regulations regarding the use of its sewer system.

The Chamberlains constructed a private sewer line approximately 600 feet long from two houses on the tract to the public sewer line. ¹ Presumably, the private lines were tapped into the public line without charge. In any event, the two houses on the tract received free sewer service thereafter, until shortly before the institution of this litigation.

In 1963, the Chamberlains subdivided a portion of the tract in question and dedicated to the public all roads shown on a plat of the subdivision. The subdivision was approved by Amarillo. One of the dedicated roads, Bonnie Drive, crossed the private sewer line previously installed by the Chamberlains. The dedication of Bonnie Drive did not, however, reserve any rights in the private sewer line.

In 1974, the Pittmans purchased one of the two houses on the tract along with some surrounding acreage. They were aware of the free sewer service when they bought the house and considered it a selling point for the property. Bonnie Drive ran along the north boundary of the acreage purchased by the Pittmans. The private sewer line ran from the Pittmans' house, under Bonnie Drive, and in a northwesterly direction across and under other property to its connection with the public sewer line.

From the time of its dedication until 1977, Bonnie Drive was an unpaved public street. In December 1976, pursuant to a request from property owners in the area, Amarillo decided to pave Bonnie Drive and awarded a paving contract for that purpose. In early 1977, while grading the street, workmen for the paving contractor uncovered and damaged the Pittmans' private sewer line. The line was repaired and work halted on the paving project. Studies conducted by Amarillo revealed the line would have to be removed before the street could be paved, because the street could not be elevated above the line without causing drainage problems, and the line could not be buried deep enough to be unaffected by the paved street without creating a sag in the line that would cause sewage to back up. Amarillo and the Pittmans negotiated the matter for several months but were unable to resolve the controversy. There were other public sewer lines in the area available to the Pittmans, but they were unwilling to pay the $250 tap fee required by Amarillo.

In September 1977, the paving contractor removed the portion of the Pittmans' private line located under Bonnie Drive, plugged the line and paved the street. Several weeks later, the Pittmans paid the tap fee, relocated their line and were connected to another line. Thereafter, Amarillo began billing the Pittmans for sewer service.

The Pittmans instituted this litigation seeking various items of relief, principally damages growing out of the effective destruction of their private sewer line and restoration of free sewer service. At the conclusion of the evidence, the trial court withdrew the case from the jury and entered a take-nothing judgment in favor of Amarillo. In this court, the Pittmans advance four points of error. The resolution of this matter, however, is determined by two basic propositions advanced by the Pittmans: (1) by effectively destroying their private sewer line across Bonnie Drive, Amarillo has taken a property right from them without just compensation and (2) under the 1949 agreement, they are entitled to free sewer service from Amarillo. We will resolve the issues in the order stated.

When a road or street is dedicated to the public, the governmental entity exercising jurisdiction over the street ordinarily acquires only an easement in the street, Texas Co. v. Texarkana Mach. Shops, 1 S.W.2d 928, 931 (Tex.Civ.App. Texarkana 1928, no writ), and holds the street in trust for the benefit of the public. City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712, 715 (1956). The easement held by the governmental entity necessarily carries with it the right to use and control as much of the surface or subsurface of the street as may be reasonably needed for street purposes. Hill Farm, Inc. v. Hill County, 436 S.W.2d 320, 321 (Tex.1969). Unless the dedication states otherwise, the abutting landowner owns the fee simple title to the center of the street, subject to the public easement. City of Fort Worth v. Southwest Magazine, 358 S.W.2d 139, 141 (Tex.Civ.App. Fort Worth 1962, writ ref'd n. r. e.), cert. denied, 372 U.S. 914, 83 S.Ct. 730, 9 L.Ed.2d 722 (1963). The landowner's exercise of his fee title rights cannot interfere with or restrict the public use of the street. See Hill Farm, Inc. v. Hill County, supra, at 323; Hale County v. Davis, 572 S.W.2d 63, 65 (Tex.Civ.App. Amarillo 1978, writ...