Spencer v. Levy

• Decision Date: 23 December 1914
• Docket Number: (No. 5422.)
• Citation: Spencer v. Levy, 173 S.W. 550 (Tex. App. 1914)
• Parties: SPENCER v. LEVY et al.
• Court: Texas Court of Appeals

173 S.W. 550

SPENCER v. LEVY et al.

(No. 5422.)

Court of Civil Appeals of Texas. Austin.

December 23, 1914.

Rehearing Denied January 27, 1915.

Appeal from District Court, Falls County; Richard I. Munroe, Judge.

Action by C. B. Spencer against M. Levy and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered.

R. L. Neal and W. L. Eason, both of Waco, for appellant. Spivey, Bartlett & Carter, of Marlin, for appellees.

Findings of Fact.

JENKINS, J.

The land in controversy herein is the wedge-shaped tract north of lots 2, 3, 4, and 5 in block 5, and that lying south of lot 5 west of the Roberts tract, north of lot No. 1 in block No. 6, and east of a line extending from the south or southwest corner of lot No. 1 to the south or southeast corner of lot No. 5, as shown on the following sketch:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The dotted lines show the boundaries of the Roberts tract, and a portion of the boundaries of the Reed tract.

Appellant, claiming to be the owner of lots Nos. 3, 4, and 5 in block No. 5 of the Railroad addition to the city of Marlin, brought suit to remove obstructions placed by appellees in what appellant alleged to be parts of Barton and of Depot streets, in said addition.

Appellees admitted that they had fenced the ground described in appellant's petition, but denied that the same were, or had ever been, any part of any public street, and, if so, they had ceased to be such by reason of their abandonment, and they aver that appellees had title to the same both by deed from the city of Marlin and by limitation. It was agreed that Falls county is the common source of title of the parties hereto. Appellant claimed title by limitation as well as by deed.

From the evidence shown by the statement of facts herein, we find the following facts:

(1) The land in controversy, as well as said lots 3, 4, and 5, are a part of the W. M. Reed tract of 6 7/10 acres.

(2) The boundary between the Reed and the Roberts tracts is a line beginning at a point on the south side of Live Oak street, 161 vrs. plus 30 feet from the northeast corner of the Coleman tract, and running thence south 140 vrs. (388.8 ft.) to the southwest corner of said Roberts tract on the east line of the Reed tract.

(3) The Reed tract formerly belonged to Falls county, and W. M. Reed became the owner thereof under a regular chain of title by deeds duly executed and recorded, if F. W. Capps, chief justice of said county, had legal authority to execute the deed which was executed by him to Frank Barnes January 25, 1883.

(4) Appellant is the owner of whatever title W. M. Reed had to lots Nos. 3, 4, and 5 shown on said sketch, under a regular chain of title by deeds duly executed and recorded.

(5) Appellant has title to said lots under both the five and the ten year statutes of limitation.

(6) On February 11, 1870, W. M. Reed and wife made and executed to John T. Flint, trustee, a deed to said 6 7/10 acres called herein the Reed tract, which, omitting formal parts and description of land conveyed, reads as follows:

"For and in consideration that the Waco Tap Railroad Company has agreed to change the depot grounds from the point near the King house at the south of Marlin to a point near our land, or upon it in the east of Marlin to be extended according to a plat made by Capt. Alexander on the line of the road as therein mapped, running about S. 40° E. across the land of Coon, Parker, Barton, Shelton, and our lands, do hereby bargain sell and convey, in consideration of the premises aforesaid to John T. Flint, trustee of ourselves and the said Waco Tap Railroad Company, the following real estate, to wit: [Here follows description.] To have and to hold, use, and enjoy the same to the said John T. Flint, trustee as aforesaid, his heirs and assigns forever, with the privileges to the same belonging subject to the following use and trust to wit: That upon the location by the said company of its railroad depot grounds on the line of said road in whole or in part where it passes through the lands of Parker, Coon, Shelton, et al., the said John T. Flint shall convey to said railroad company the right of way across said land with the necessary and usual depot grounds for buildings of the company, side tracks, and engine house if needed first, and then survey off the balance of the land hereby conveyed into town lots for business or dwelling houses 50 feet front and 150 feet in depth with such fractional lots as may be necessary in subdividing said land, and also with necessary alleys and streets, which said alleys and streets the said trustee shall convey to the public use, and then the said trustee shall sell the said lots and fractional lots for the best price he can at public or private sale, shall pay over the proceeds of such sale on demand as follows, to wit: To the grantors herein one half of the same, and the other half to the said Waco Tap Railroad Company."

Said deed was duly recorded February 18, 1870.

(7) Some time prior to October 23, 1871, Flint mapped, or caused to be mapped, the Railroad addition to the city of Marlin, and sold the lots therein, including lots 1, 2, 3, 4, and 5 in block No. 5 of said addition by and with reference to said map.

(8) Said lots 1, 2, 3, 4, and 5 in block 5, and lot 1 in block 6, of said Railroad addition, were placed and mapped on said map, as were also Barton and Depot streets, as shown on the above sketch, and, as thus mapped, lots 3, 4, and 5 were each 50×150 feet, and fronted on Barton street, and the south side of lot 5 was its full length on Depot street. As thus mapped, Barton street was 70 feet wide, Depot street was 140 feet wide, and the alley in the rear of said lots was 20 feet wide.

(9) On October 23, 1871, the city of Marlin, by ordinance, recognized the existence of said Railroad addition, and the dedication of the streets and alleys therein, and accepted the same, as shown by the map of said addition made by said Flint, or under his authority.

(10) There is no evidence that Flint, or any one else, ever acknowledged said map, as required under the registration laws, or that the same was ever filed or recorded in the office of the county clerk of Falls county.

(11) What is called herein the Wescott map has thereon a correct copy of the original map of the said Railroad addition, and the vellum map found in the railroad office at Marlin, if it is not an original map of said addition, is a correct copy of same.

(12) Lot 3 in block 5 in Railroad addition was deeded to appellant's father, whose estate appellant has, April 21, 1873, as such lot, as shown by said map of the Railroad addition to Marlin. On February 1, 1878, lot No. 4 in block No. 5, in said Railroad addition was conveyed to appellant's father, and on February 28, 1880, lot No. 5 in block No. 5 in the town of Marlin, "as represented on the map thereof drawn by ____ and recorded in Book ____, page ____, of records for said county. References hereby made for particular description." The lot thus conveyed is lot 5 in block 5, Railroad addition to the town of Marlin, as shown by the map of said addition.

(13) C. B. Spencer, the father of appellant, bought said lots with reference to the map of said Railroad addition. He built his house fronting the alley, which he widened to 30 feet, and built his barn and stock lot on the front line of lot No. 3 on said Barton street, where they still are.

(14) Neither Barton nor Depot streets were ever opened or traveled as streets on the portions of same adjoining appellant's said lots, but appellant's father used Barton street as a means of egress and ingress to his barn from the time he erected the same, which was soon after he purchased lot No. 3, until recently, when the same was entirely fenced up by appellee Mrs. Owens. There is a deep ditch running across Depot street on the east line of the railroad right of way, which prevents its being used as a crossing for vehicles.

(15) The closing of Barton and Depot streets deprives appellant of all access to his barn and stock lots, except through his premises from the alley, and materially depreciates both the market and rental values of his said lots.

(16) Neither Flint, nor any one else, was authorized to extend Barton street or Depot street upon or across the Roberts tract; nor have any of the owners of said tract ever ratified said map in so far as it extends said streets or either of them upon or across said Roberts tract.

(17) The Roberts tract was fenced at the time the Railroad addition was mapped, and has remained fenced ever since, except that the fence was a few feet east of the west line of same, and left a passway between the west line of said tract and the east corner of lot No. 5. This passageway has had a gate across it part of the time, just when or for what time is not made definitely to appear.

(18) The city of Marlin deeded the wedge-shaped tract to appellee M. Levy, with a life estate in an undivided one-half interest to appellee Mrs. Owens, on July 3, 1884, which deed was duly recorded October 8, 1884.

(19) Prior to the execution of the deed mentioned in the preceding paragraph hereof, Mrs. Owens had fenced the eastern part of said wedge-shaped tract, and used the same as a garden, but did not claim the same. The evidence does not show the location of the western line of said fence.

(20) From the time of the execution of the deed mentioned in paragraph 18, supra (July, 1884). Mrs. Owens and Levy have claimed said wedge-shaped tract, and have rendered the same for taxes and paid all taxes thereon.

(21) Some time, more than five years and less than ten years, before the trial hereof, Mrs. Owens moved the west line of her fence to the west line of said wedge-shaped tract. The evidence does not indicate with greater certainty than above stated when all of said wedge-shaped tract was inclosed by appellees.

(22) On August 28, 1893, the mayor...