State v. Clark

• Decision Date: 23 March 1960
• Docket Number: No. A-7390,A-7390
• Citation: 336 S.W.2d 612,161 Tex. 10
• Parties: STATE of Texas et al., Petitioners, v. B. F. CLARK, Respondent.
• Court: Texas Supreme Court

Page 612

336 S.W.2d 612

161 Tex. 10

STATE of Texas et al., Petitioners, v. B. F. CLARK, Respondent.

No. A-7390.

Supreme Court of Texas.

March 23, 1960.

Rehearing Denied July 6, 1960.

Will Wilson, Atty. Gen., H. Grady Chandler, Joseph G. Rollins, James P. Ryan, Asst. Attys. Gen., for the State.

I. M. Singer, City Atty., Corpus Christi, J. F. Park, Milton W. Walton, Asst. City Attys., for City of Corpus Christi.

Wm. H. Shireman and David M. Coover, Corpus Christi, for B. F. Clark.

CULVER, Justice.

Respondent, B. F. Clark, sued The State of Texas for damages to his real property caused by the diversion of a plot of ground dedicated to the public for park purposes to the use as a part of the right-of-way for the construction of an elevated approach to a high-level bridge over the ship channel in the City of Corpus Christi. The State, over respondent's objection, impleaded the City which had agreed to indemnify the State for any damages that might be recovered by the respondent. The trial court sustained pleas in abatement presented by the State and the City to respondent's suit based upon an asserted lack of justiciable interest. The court of Civil Appeals has reversed and remanded for trial on the merits. 324 S.W.2d 75. This judgment of reversal and remand will be affirmed.

The facts pleaded by the plaintiff and all pertinent circumstances have been related in detail in the Court of Civil Appeals' opinion to which we refer.

In 1913 the owners of all of the property under consideration here, conveyed to respondent's predecessor the land now owned by respondent and included in the deed the following provision: 'It being agreed and stipulated that all the land between the East line of said Blocks and Timon Avenue shall be and is hereby dedicated to the public.'

In 1915 the owner made a re-dedication of the same property as follows: 'To and for the use of the public forever, for the use of the public as a public park.'

In 1917 the dedication of the property for public use and for park purposes only was reaffirmed with special reference to the 1913 deed. In 1926 the owners conveyed all of their right, title and interest in this property to W. E. Pope for the recited purpose 'in order that he may re-dedicate it to the public for park purposes, should any court of proper jurisdiction hold that said former dedication has been canceled or annulled on account of the non-use of said property for said park purposes.'

In 1928 the tourist court units and other valuable improvements were erected on the land here claimed to be damaged, all of which were purchased by respondent, Clark, in 1953. The plaintiff claims that these improvements were erected and his purchase of the same were all made and done in reliance upon the dedication of the strip of land heretofore mentioned for park purposes.

Thereafter and in furtherance of plans to widen and improve United States Highway 181 by the construction of a high-level bridge and approaches thereto so as to eliminate traffic delay and congestion caused by the operation of a drawbridge across the ship channel, the City of Corpus Christi conveyed by quitclaim deed to the State all of its right, title and interest in the dedicated park area-a long, narrow strip of approximately two and one-half acres.

The authorities distinguish the interest that abutting owners might have in park properties in respect to the manner of acquisition and dedication. Where the City has purchased and owns the property outright, even thouge it had been dedicated and used for park purposes, the City may sell and devote the same to other uses as the governing body may see fit subject to statutory or charter limitations. On the other hand, where the property has been given or dedicated by private parties to the public for park purposes, the City must recognize the interest of abutting property owners who have purchased relying on the dedication and the rights of those owners to the continued use of the property for park purposes. Reichelderfer v. Quinn, 287 U.S. 315, 53 S.Ct. 177, 77 L.Ed. 331; Clark v. City of Providence, 16 R.I. 337, 15 A. 763, 1 L.R.A. 725; Slavich v. Hamilton, 201 Cal. 299, 257 P. 60; 18 Am.Jur., Eminent Domain, § 228, p. 861, 83 A.L.R. 1435.

Petitioners assert that notwithstanding the acts of dedication of the property for park purposes shown by the instruments filed of record and noted above, the respondent has shown no right in the area that would justify a complaint on his part on account of its diversion to the use for highway purposes for several reasons. There was no plat or map put of record showing a scheme of development of the area and existence of a park as in the ordinary case where property is developed for residential and commercial use and as was followed in the case of Fall v. Thompson, 126 Tex. 326, 87 S.W.2d 712. However, we think the old case of Oswald v. Grenet, 22 Tex. 94 is sufficient authority for holding that a formal plat exhibited to prospective purchasers and the other procedure followed in the plan of modern real estate development are not essential to the validity of a park dedication. The grantors unequivocally made known, at least by 1915, their intention to dedicate the area for park purposes, and the respondent, Clark, alleged that he acted in reliance upon the manifestation of such intention in the purchase of the tourist courts in 1953. It is also said that the original dedication was 'to the public' without reference to any park purpose. But until there has been an acceptance the dedication may be withdrawn or modified. City of Corpus Christi v. McCarver, Tex.Civ.App., 289 S.W.2d 420, er. ref. n. r. e. It is alleged that when the surrounding area was annexed to the City of Corpus Christi the City thereafter incorporated this parkway into its park system and maintained and cared for it thereafter. We are of the opinion that the dedication of this property and reliance thereon are sufficiently pleaded and shown here so as to afford a cause of action for damages for the diversion of the parkway.

Petitioners insist that this case is ruled by judgment of the trial court in a former case brought by respondent against the City of Corpus Christi and others and affirmed by the Court of Civil Appeals in Clark v. City of Corpus Christi, 301 S.W.2d 168, from which no writ of error was applied for. In that case the suit was instituted against the City of Corpus Christi, Nueces County, the Highway Commission of Texas, the Attorney General of Texas, and Guaranty Title & Trust Company, a corporation. Respondent in that suit sought a declaratory judgment to determine his rights and status with respect to the defendants and each of them and particularly in so far as his property might be taken and damaged without condemnation for the purpose of the construction of a high-level roadway bridge and approaches thereto across the ship channel and thus widen and improve State Highway 181. The property of the plaintiff referred to in that suit was the same as we have under consideration here. The judgment of the trial court found and decreed as follows:

'That the park area had been dedicated to the public for park purposes and the fee or reversionary title by mesne conveyances, has been transferred by the original dedicators to, and is now vested in the State of Texas; that plaintiffs' property is separated from this park area by a dedicated street; that plaintiffs have no such property interest in this park area as would require that such interest be condemned and compensation paid therefor, in advance of the entry upon, and commencement of the construction of the high-level roadway on or over, such park area; that plaintiffs will have a cause of action against the State of Texas, upon being granted legislative permission to sue the State, for recovery of such damages, if any, as they may suffer because of the construction, maintenance and operation of such high-level roadway bridgeBut that such damages, if any, at this time are anticipatory and speculative; that the Guaranty Title and Trust Company did not breach any covenant with plaintiffs by conveying to the State of Texas the reversionary title to the park blocks it held in trust; that the agreement of the City of Corpus Christi to indemnify the State of Texas against claims for damages was and is solely for the benefit of the State, and that plaintiffs are not in privity with such indemnity contract and cannot assert a cause of action thereon. * * *'

The Court of Civil Appeals in affirming this judgment cited Kingsville Independent School District v. Crenshaw, Tex.Civ.App., 164 S.W.2d 49, as authority for its holding that respondent had no property interest that would require condemnation proceedings under the right of eminent domain.

The Court of Civil Appeals in its opinion held that 'as stated by the trial court if appellants here should suffer damages their remedy would be a suit against the State if legislative consent to sue the State would be given.' (301 S.W.2d 171.) The petitioners insist that that holding rules out any claim for damages caused by diversion of the park and relegates respondent solely to a claim for damages caused by the construction and maintenance of the elevated approaches on the basis of a nuisance. In this respect we think petitioners are mistaken. In that former suit the only point really presented to and decided by the Court of Civil Appeals was that respondent had no such property interest in the parkway area which would require condemnation proceedings to be brought by the State of Texas. It was therefore held that the State of Texas was entitled to take possession of the property under its deed from the City of Corpus Christi without bringing suit against the respondent to condemn any property interest that he might have in the parkway as an abutting property owner. The Court did not hold that the respondent had no interest that would support a claim for damages...