State v. Travis County

• Decision Date: 03 April 1893
• Parties: STATE v. TRAVIS COUNTY.
• Court: Texas Supreme Court

21 S.W. 1029

STATE v. TRAVIS COUNTY.

Supreme Court of Texas.

April 3, 1893.

Error from court of civil appeals of third supreme judicial district.

Action by Travis county against L. M. Crooker, as surviving partner of Christian & Crooker, and Matilda Christian, as surviving wife of Christian, for rent. The state intervened. A judgment for plaintiff was affirmed by the court of civil appeals, (21 S. W. Rep. 119,) and the state brings error. Reversed.

C. A. Culberson, Atty. Gen., Mann Trice, A. S. Burleson, Dist. Atty., and W. J. J. Smith, Asst. Dist. Atty., for the State. D. H. Hewlett, for defendant in error.

HENRY, J.

This case is before us on a writ of error to the court of civil appeals of the third supreme judicial district, sued out by the appellant. The county of Travis brought suit in the district court against L. M. Crooker, as surviving partner of Christian & Crooker, and Matilda Christian, as the surviving wife of the said Christian, to recover $1,500, claimed to be due by contract for the rent of a certain block of land in the city of Austin. The state of Texas intervened in the suit by petition in the nature of an action of trespass to try title, alleging ownership of the land in controversy, and praying for a judgment for its possession, and for the recovery of $1,500, as damages for its use and occupation. The defendants consented to a judgment against them in favor of the party found to be entitled, for $1,500. The case was tried by the judge without a jury, and a judgment was rendered in favor of the county against the state for the land and against the defendants for the money.

Omitting legislative acts, the material facts found by the court of civil appeals are substantially as follows: When the city of Austin was originally divided into blocks and lots and platted, the block in controversy, and all other blocks and lots in said city, belonged to the republic of Texas, and all of them, not in some manner dedicated to public uses, were subsequently sold by the republic or the state. As provided by the statute of the republic, quoted below, the agent of the republic designated upon the map of the city the lots and blocks reserved for public uses. The original map of the city was made in 1840, and is now on file in the general land office of the state of Texas. Upon it the block now in controversy is designated as follows: On the north half thereof, is written the word "Courthouse," and on the south half the word "Jail." Upon said map the block immediately north of said courthouse and jail block is designated by the words "Public Square." The said map was made by the agent of the republic, and has remained on file since it was made as the official map of said city, and all lots and blocks were sold by the government by and according to said map. In the year 1846 Travis county took possession of the block in controversy, and erected on it a wooden jail, which it used until 1853, at which time it was destroyed by fire. In 1855 the county erected on the north half of the block a rock and concrete house for a courthouse and jail, which is still standing, and was used for said purposes until 1876, when it was abandoned by the county, and it has not since that time been used as a courthouse or jail, but since 1877 said block has been rented by the county to Loomis & Christian, and their successors, the defendants, Christian & Crooker, as a lumber yard. In pursuance of the acts of the legislature, (hereinafter referred to,) Travis county erected in 1875 and 1876 a courthouse and jail, and jailer's residence, at a cost of about $220,000, on the north half of block No. 123 in the city of Austin, which it has ever since occupied. The present courthouse is distant about three fourths of a mile from the old courthouse, is more conveniently situated for the inhabitants of the city, and its location is better suited in every particular for the uses intended than the old one is. The present value of the old courthouse and jail is about $2,500. The present population of Travis county is about 50,000, of the city of Austin, 20,000. The state's plea of intervention was filed in this cause on the 8th day of May, 1891, which was the first act upon the part of the state that called in question the title of the county, or its right to hold and use the block in controversy. The intervention of the state was by the attorney general, under the direction of the governor. A motion by the state for a rehearing, which was refused, presented the following grounds therefor, which are insisted upon in this court: (1) "Because the court erred in holding that the title to the premises in question did not revert to the state on the abandonment and nonuser of the premises for the purposes for which the dedication was originally made." (2) "The court erred in holding that appellee acquired title to the premises in question by virtue of section 3 of special act of the legislature of the 30th day of May, 1873." An act of the congress of the republic, entitled "An act for the permanent location of the seat of government," approved January 14, 1839, (page 161, Sp. Laws 1839,) provided for the appointment of an agent by the president of the republic, as soon as he should receive the report of the commissioners appointed to locate the capital, to survey, plat, and sell 640 acres of land out of the site chosen, and that "said agent shall cause to be made ten plats of said city, one of which shall be deposited with the president, one with the commissioner of the general land office, one with the Texas consul at New Orleans, one with the Texas consul at Mobile, and the remainder of which shall be retained by the agent at said city." The act further provided "that the said agent, before the sale of said lots, shall set apart a sufficient number of the most eligible for a capitol, arsenal, magazine, university, academy churches, common schools, hospitals, penitentiary, and for all other necessary public buildings and purposes."

We are of the opinion that the copy of the plat found in the general land office, on which are written the words "Courthouse" and "Jail," and no other designation or number, on the block in controversy, considered in connection with the said statute and the other facts in evidence, is sufficient to show a dedication of the use of the block to the county of Travis for the purpose of constructing and keeping on it the buildings designated, so long as the county might elect to occupy it for such purposes. The fee never passed out of the state. It is contended by the appellee that by the dedication public rights were acquired in the use of the land, which could not be impaired or destroyed by the action of the county nor the authority of the state, and that it is only "when the use becomes impossible of execution that the property dedicated to public uses, without any provision for forfeiture, reverts, or the right to such use becomes extinct." Com. v. Rush, 14 Pa. St. 186; Barclay v. Howell, 6 Pet. 498; Williams v. Society, 1 Ohio St. 478; New Orleans v. U. S., 10 Pet. 662. We think that the doctrine contended for is correct when applied to some dedications, but not to all, nor to the one now under consideration. If the land had been dedicated unqualifiedly to public uses, —if, for instance, the words "Public Park" had been written upon the plat instead of the words "Courthouse" and "Jail," we think that the public, as well as the purchasers of adjacent lots, would then have acquired rights in the property beyond the power either of the state or the county to divert or affect; and if, in such case, an attempt had been made to defeat or modify the enjoyment of such rights, then the remedy would have been to compel their observance by appropriate legal proceedings, which any owner of adjacent lots could have instituted. If the dedication had been of that character it would have been available in this case by the county against the intervention of the state. City of Cincinnati v. Lessee of White, 6 Pet. 431; Warren v. Mayor, 22 Iowa. 351; San Francisco v. Canavan, 42 Cal. 553; 5 Amer. & Eng. Enc. Law, tit. "Dedication." Instead of being a general or unqualified dedication to the public, the only privilege granted was to use the land for a courthouse and jail. It must have been understood by purchasers of lots, and all others having an interest in the matter, that the county was not bound, and could not become bound, to permanently keep its courthouse or jail at that place. It had from the beginning the inalienable right to remove both from the land whenever its interest or convenience should lead it to do so. Whatever interest others had in the use of the property was acquired with the knowledge of this right, and subject to its exercise. The state had the power to make an unqualified or unlimited dedication; and, if it had done so, it could not now defeat it, but, instead of that, it limited the use to an expressed purpose. The privilege proposed by the state and accepted by the county was that the county might use the land as a site for its courthouse and jail as long as it should choose to do so. The rights acquired by others in the use were subordinate to those of the county, and depended upon its action. The state had pledged the land only for specified uses, and when they were abandoned there rested upon it no obligation to devote the property to purposes never consented to by it, by dedication or otherwise, in favor of either the county or purchasers of lots. Lewis, Em. Dom. § 596; Washb. Easem. 707; Ang. & D....