Schultz v. Shatto

• Decision Date: 07 March 1951
• Docket Number: No. A-2885,A-2885
• Citation: 150 Tex. 130,237 S.W.2d 609
• Parties: SCHULTZ et al. v. SHATTO.
• Court: Texas Supreme Court

Page 609

237 S.W.2d 609

150 Tex. 130

SCHULTZ et al. v. SHATTO.

No. A-2885.

Supreme Court of Texas.

March 7, 1951.

Rehearing Denied April 11, 1951.

Miller & Rutta, Massey, Hodges & Moore, and Philip Gates, all of Columbus, for petitioners.

G. F. Steger, Columbus, A. J. Wirtz, Austin, for respondents.

GRIFFIN, Justice.

Petitioners were plaintiffs and interveners in the trial court, who sought an injunction against the respondent, Preston K. Shatto, preventing him from erecting obstructions across a tract of land, described by metes and bounds and also designated as 'New Street.' Petitioners further sought a judgment enjoining respondent from interfering with their use of said disputed tract of land as a street; and sought a judgment of the court establishing and designating the land as a public street in the town of Columbus, Texas. They alleged facts in their pleadings seeking relief upon three grounds as follows: (1) that Robert Robson, in 1869, was the owner of this land and dedicated same as a public street; (2) that Robert Robson had dedicated a private easement in favor of petitioners to use the land as a public street, either impliedly or directly, by virtue of the making of a map or plat by Robson and a sale of the lots shown on the map by reference to the map or plat, and also by reference to the land in controversy as 'New Street', and (3) that by use and enjoyment of said land as a street for more than 65 years the land had become a street by prescription and both petitioners and the public generally had a right to use the same as a street.

Trial was to the court without a jury, and at the conclusion of the testimony, judgment was rendered for petitioners as prayed for, declaring the land to be a public street, establishing said 'New Street' as a public street, and enjoining respondent from interfering with the use of such property as a public street, and ordering him to remove the obstructions which he had erected thereon. No findings of fact or conclusions of law were filed nor requested. On appeal, the Court of Civil Appeals sustained Shatto's assignments that the evidence was insufficient to sustain the judgment and held 'that the evidence so adduced by the appellees (petitioners here) failed to establish that any such easement as they declared upon had been acquired, either by dedication or prescription.' Also, 'Upon the contrary, the body of the evidence, as a whole, not only sustains the other points-of-error so presented here by the appellant (respondent here), but especially his quoted seventh one, that the use of this property, either by the individual appellees, the Town of Columbus, or the public generally, had ever been more than such casual and promiscuous use thereof as had been made of adjacent vacant lots elsewhere in the town generally.'

The Court of Appeals further held 'Our authorities have long held that, to constitute a dedication of a street, or of a private way, it must be shown that the owner made and exhibited a map or plat of the ground designated as a street, or alley, and that lots were sold with clear reference to it.' 232 S.W.2d 266, 268. The Court of Civil Appeals reversed and remanded the cause.

Petitioners sought to show a dedication by introducing an execution, dated May 16, 1868, showing that on March 6, 1868 one William Harberts, Administrator, recovered a judgment for $3,369.20 against Robert Robson. Also introduced was an agreement signed by Robert Robson whereby the execution issued was stayed to June 1, 1869, upon promise of Robson not to appeal or contest the justness of the claim and to pay the judgment within such time. Next introduced was another execution, dated June 2, 1869, and the levy and return of the sheriff of Colorado County thereon. In his return the sheriff recites the receipt of the execution and the levy upon other property belonging to defendant Robson; then he says 'also (levied upon) twenty-nine lots (29) in the town of Columbus, Colorado County, Texas, said lots being portions of (certain part of West 1/2 of Blk. 8 of said town) and said lots particularly marked out on a certain map or plan, furnished me by said Robson subdividing said half block and said original lots and numbered upon said map, as follows: (here he sets out Numbers 1 through 32, each in parentheses, omitting 3, 4 and 10).' Then he recites a levy on other property, and that in July, 1869, the parties agreed to postpone the sale under the execution until the first Tuesday in August, 1869. Next he makes the necessary recitations as to the advertisement and lists the sale of each of the 29 lots, together with the amount brought by each, and the names of the purchasers. Included is a report of sale of a certain vacancy, which does not affect the land included within the alleged street. The return is duly signed, returned and filed. Pursuant to said sale the sheriff makes deeds to the lots to the various purchasers of same. The three deeds set out in the testimony each contain, among other things, a recitation to the effect that the lots sold under the execution and so deeded were 'numbered as follows on the map or plan made by Robert Robson subdividing said half block and said original lots in said half block.' The deed to Robert L. Foard and E. M. Glenn, dated August 9, 1869, in describing Lot No. 11 says: 'Lot Number Eleven beginning at the SW corner of the New Street as laid out on Robson subdivisional map or plan; thence South, etc., thence East, etc., thence North 24 ft. to a point in said New Street, thence West sixty-six feet along said New Street to the place of beginning. Lot Number Seventy-eight (but later described as '28', showing '78' was a clerical error) fronting on said New Street as laid down on Robson's subdivisional map, etc.' The description of Lot No. 15, also calls for a 'point on Milam Street 74 ft. from the NW corner of the New Street as laid on Robson's subdivisional map.' Lot No. 25 is described as fronting twenty-two feet on the north side of 'the New Street as laid down on Robson's subdivisional map.' In the sheriff's deed of same date, conveying certain other lots to the purchaser at the execution sale, reference is made to 'the New Street laid off by said Robson on his map' in two or more instances. In describing the lots sold and conveyed to the purchaser and grantee in the deed, John T. Harcourt, it is recited more than once that Robson had a map or plan subdividing the original lots in the west half of Block 8. Similar language is used in the sheriff's deed to Mrs. S. M. Claiborne in describing the lots which she bought at the execution sale, and which reads as follows: '* * * the same (W 1/2 of Blk. 8) having been subdivided by the said Robson into small building lots and sold accordingly as his request and numbered on a subdivided plan or map presented by him to said Robson on the day of sale * * *.' This deed calls for 'New Street', as shown on the new plan, '* * * and conveys to Mrs. S. M. Claiborne the property purchased by her together with the privilege of said New Street laid out as aforesaid which the said Robson had, etc. * * *'.

All of the above deeds were recorded in Deed Records of Colorado County, Texas, on August 16 and 17, 1869. On December 10, 1869 the sheriff conveyed certain lots to one Phila W. Johnson, reciting they were sold on the first Tuesday in December, 1869 under an execution on a judgment rendered against Robert Robson in favor of Simon Thulemeyer. This deed states '* * * the same (property) having been subdivided by said Robson into small fractional lots as shown on a plan or map which was exhibited by said Robson on the day of sale, etc. * * *.' No map or plat prepared by Robson was ever placed of record, and no one, who testified, ever saw such map or plat. The petitioners held titles to their respective properties under these sheriff's deeds and it is stated that each and every deed in their title referred to Robson's subdivisional map or plan subdividing the west one-half of Block 8, and many referred to 'New Street' or 'Little Street.'

This alleged street was approximately in the middle of the west one-half of Block 8 in the town of Columbus and was about 50 feet north and south by 166 2/3 feet east and west, and fronted on Milam Street which ran north and south along the west side of Block 8. Intervener, Laas, bought his property in 1905 and it lay immediately north of the property in controversy. Plaintiffs, Mrs. Jennie Burger and Robert Burger, own the property adjoining, and on the south of the alleged 'New Street' and have had their titles since 1905 through their immediate grantor, Emil Burger, and 1924 as to E. J. Burger. Mrs. Bettie J. Schultz, a plaintiff, owns a tract of land on the south side of the alleged street, which has been in the family since 1906. Plaintiff, First State Bank of Columbus, owns a tract of land on the south side of the alleged street, between the Burger tract and the Schultz tract and the Bank owned this tract since in the 1920's. The Schultz tract and the Bank tract are not on any street and their only frontage is, and has been, into the alleged street and along it to the main streets of Columbus. There is a warehouse on the east end of the Laas property which fronts on this alleged street, and access can be had only along this alleged street. These conditions have existed for many years in excess of the 10 years necessary to secure a prescriptive right to use the property in controversy as a street.

The testimony is uncontradicted, and the only argument is to the effect to be given the testimony. It is shown that from 1869 down to the time the respondent secured a deed to the land in controversy-August 26, 1948-no claim was ever made to this land by anyone, nor was there any interference with the public's use of the land as a street. Since 1927, (when the city was incorporated) it was testified by the city manager and by a member of the City Council...