State v. Easley, 6768
| Decision Date | 01 April 1965 |
| Docket Number | No. 6768,6768 |
| Citation | 390 S.W.2d 24 |
| Parties | STATE of Texas, Appellant, v. Tom D. EASLEY et al., Appellees. |
| Court | Texas Court of Appeals |
Woodrow Curtis, Asst. Atty. Gen., Austin, for appellant.
H. A. Coe, Jr., Kountze, for appellees.
The State of Texas sued Tom D. Easley and wife, Norma Jean Easley, and James Edward Read and wife, Geraldine Read, in trespass to try title for 33.61 acres of land situated in Hardin County, Texas. Plaintiff and defendants each filed motions for summary judgment. The motion of the State was refused and the motion of the defendants was granted and judgment entered accordingly. The parties will be designated as in the trial court.
Olive-Sternenberg Lumber Company was the owner at one time of all lands involved in this suit. By deed dated June 11, 1938, Olive-Sternenberg Lumber Company as a gift and without consideration conveyed to plaintiff, the State of Texas, two tracts of land totaling 33.61 acres of land for right-of-way purposes. That it was a 'gift' and donated is undisputed and admitted by plaintiff.
By deed dated September 29, 1956, Cecil Smith and others conveyed to Tom Easely and Leveta Easley 2.115 acres of land acquired by such grantors from themselves as trustees and owners of all stock of the dissolved corporation, Olive-Sternenberg Lumber Company. (Leveta Easley was divorced from Tom D. Easley and conveyed her interest in the 2.115 acres to Tom D. Easley.) Part of such land is within the limits of the 33.61 acres and part outside thereof. The western line of the 2.115 acres is coincident with the eastern line of Hardin County 1.64 acres described in the next paragraph.
On April 28, 1961, the Governor of the State of Texas under Art. 6673a, Vernon's Rev.Civ.St.Tex., upon the recommendation of the State Highway Commission, conveyed to Hardin County 1.64 acres, more or less, which was completely within the limits of the lands conveyed by Olive-Sternenberg Lumber Company to the State of Texas. This 1.64 acres was conveyed by deed recorded in Vol. 418, p. 103 of the Deed Records of Hardin County, Texas, reciting that Hardin County originally acquired this land from Olive-Sternenberg Lumber Company at no cost to the State. The deed of April 28, 1961, also recited the land was no longer needed for highway purposes or for use of citizens as a road due to the relocation of the highway and then set forth the other provisions of Art. 6673a authorizing the Governor to quitclaim to the County its interest in said 1.64 acres. The ensuing sketch shows the location of the old highway rights-of-way and new highway right-of-way of the State of Texas, the 1.64 acres, and the 2.115 acres showing that part in the old highway right-of-way and that part outside of the old highway right-of-way.
The defendants, James Edward Read and wife, Geraldine Read, acquired an interest in the 2.115 acres from Tom D. Easley and wife.
The plaintiff, the State of Texas, admits defendants own that part of the 2.115 acres outside the limits of the old highway. As to that part of the 2.115 acres within the limits of the old highway right-of-way and within the limits of the 33.61 acres conveyed by Olive-Sternenberg Lumber Company to the State of Texas, defendants say that when same was abandoned by the State of Texas, that they, as subsequent assignees of Olive-Sternenberg Lumber Company, became vested with the title thereto under Art. 6674q-9, Vernon's R.C.S.T., providing that when the right-of-way or any part thereof has been abandoned and was donated to the State of Texas for right-of-way purposes then, and in that event, the fee simple title vests in said owners, their heirs and assigns. The trial court held that as to that part of 2.115 acres in the old right-of-way the State of Texas anandoned such right-of-way, and the title thereto was by such abandonment vested in defendants.
Viewing the evidence most favorable to defendants on the question of abandonment, we find the following: The two tracts of land described in the deed from Olive-Sternenberg Lumber Company to the State of Texas were appropriated and used by the State of Texas for highway purposes which was the main highway from Kountze to Woodville and was known as Highway 40 and Highway 69. Such was a State highway and was part of the State Highway System. Part of this old highway, about 3/4 of a mile in length, more or less, was relocated and moved to the east by the State about 1957. From 1957 to time of trial the entire tract of 1.64 acres was enclosed by a chain link fence eight fee high built by Hardin County completely blocking the old highway, closing the old highway to the use of the public and the State Highway Commission. By such conveyance by the State of Texas to Hardin County of the 1.64 acres and the closing of the old highway, the State of Texas thereby abandoned such part of the highway right-of-way.
That part of the old right-of-way to the north and to the south of the 1.64 acres was not abandoned. That part of the old right-of-way to the east of the 1.64 acres was abandoned when the 1.64 acres was abandoned. Defendants had affidavits in support of such facts of abandonment, but the State of Texas only introduced its pleadings, including the exhibits thereto, a map, and then rested. Therefore, we find evidence supporting the trial court's finding that the part of the 2.115 acres adjoining the old abandoned roadway and in the old right-of-way was abandoned.
Appellant states its position in its brief as follows:
'Both parties, in their motion for summary judgments stated there were no material fact issues involved in this.
'The question of law in this case is, to wit:
'(a) Whether Art. 6673a, R.C.S.T., applies and controls the law in this case, or
'(b) Whether Art. 6674q-9, R.C.S.T., applies and controls the law in this case.
'The State of Texas contends that Art. 6673a, R.C.S.T., applies and controls the law of this case, because:
'(1) It is the only law setting out the matter in which the State could divest itself of title to the 2.115 acres of land in controversy.
'(2) Art. 6673a, pg. (3)(a); 'If title to the State was acquired by donation, convey to the grantor, his heirs or assigns; or if acquired by purchase by a county or city, convey to the county or city, or to the grantor, his heirs or assigns at the request of the county or city.
'(3) Art. 6673a, R.C.S.T., Section 6; (in part)--Acts 1931-42nd Leg., p. 170, ch. 99; Acts 1953, 53rd Leg., p. 795, ch. 323, Sec. 1. (General Session Laws of 1953)
'(4) Art. 6673a, R.C.S.T., Sec. 2, Acts of 1953, ch. 323, S.B. 175, Art. 6673, approved June 8, 1953; 53rd Leg., p. 797, ch. 323, provides as follows, to wit: (General Session Laws of 1953)
'(5) Art. 6673a supercedes Art. 6674q-9 because of the repealing of conflicting laws clause and because Art. 6674q-9 was amended by Acts of 1943, 48th Leg., p. 494, ch. 324, Sec. 1; that Art. 6673a was the Acts of 1931, 42nd Leg., p. 170, ch. 99; Acts 1953, 53rd Leg., p. 795, ch. 323, Sec. 1.
Art. 6673a, R.C.S.T., was first enacted by the legislature by House Bill No. 1014, ch. 99, 42nd Leg., Regular Session, approved May 5, 1931, and provides for the return to the owner of land donated by him to the State where the State Highway Commission had acquired any land to be used as a right-of-way for any State highway and thereafter the route of such highway was no longer needed for such highway was use by citizens as a road, the State Highway Commission may recommend to the Governor that such land be returned by proper deed to the person or persons from whom the same was received. The amendment of Art. 6673a, R.C.S.T., by the Acts of 1953, 53rd Leg., p. 795, ch. 323, sec. 1 (General Session Laws of 1953) changed the provisions of such act when the land for...
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Keeton Packing Co. v. State
...in Easley held the two statutes para materia, with which the Supreme Court did not agree. Additionally, the deed was an outright gift, 390 S.W.2d 24, while there is evidence here raising the question of fact as to whether the Keeton deed was executed in consideration of enhanced value of ot......
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State v. Easley
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