Texas Bitulithic Co. v. Warwick

• Decision Date: 06 April 1927
• Docket Number: (No. 770-4746.)
• Citation: 293 S.W. 160
• Parties: TEXAS BITULITHIC CO. et al. v. WARWICK et al.
• Court: Texas Supreme Court

293 S.W. 160

TEXAS BITULITHIC CO. et al. v. WARWICK et al.

(No. 770-4746.)

Commission of Appeals of Texas, Section B.

April 6, 1927.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by the City of Waxahachie and others against V. V. Warwick and others, wherein the Texas Bitulithic Company intervened as plaintiff. Judgment rendered by the district court was affirmed in part and in part reversed and remanded by the Court of Civil Appeals (288 S. W. 516), and plaintiffs bring error. Judgments of the district court and the Court of Civil Appeals reversed, and judgment rendered for plaintiff.

Geo. T. Lee and Dabney, Goggans & Ritchie, all of Dallas, for plaintiffs in error.

J. T. Spencer, of Waxahachie, for defendants in error.

POWELL, P. J.

For a partial statement of this case, we quote as follows from the opinion of the Court of Civil Appeals:

"This suit was brought by the city of Waxahachie for the use and benefit of the Texas Bitulithic Company, a corporation, against V. V. Warwick and wife, Minnie E. Warwick, Mrs. Lizzie Trippet and husband, A. Trippet, Ida Cochran and husband, J. A. Cochran, Leila Norton and husband, Fletcher Norton, C. P. Shelby and wife, E. A. Shelby, J. T. Spencer and wife, M. E. Spencer, and J. T. Spencer, agent, on July 25, 1923, to collect and enforce a special assessment evidenced by certificate of special assessment issued by said city to Texas Bitulithic Company for the sum of $495.83 against V. V. Warwick and wife, Minnie E. Warwick, and their property fronting 103.33 feet on the west side of Monroe street in said city, and to establish and foreclose a special assessment lien securing said sum on said property against the interest of all the defendants herein. The Texas Bitulithic Company intervened as plaintiff and asked for judgment in its own behalf upon the certificate of special assessment, and also declared upon a mechanic's lien contract on said property, executed by said V. V. Warwick and wife to said company for the cost of the improvements, and sought personal judgment against Warwick and wife and foreclosure of said assessment and contract liens on said property against all the defendants.

"Defendant Warwick owned a tract of land abutting on Monroe street in said city, and used and occupied the same with his family as a home at the time said street was paved and said assessment levied. The defendants other than Warwick and wife had a claim against said property for an unpaid balance of purchase money.

"The controlling issue in this appeal is whether the mechanic's lien contract given by Warwick and wife to the Texas Bitulithic Company was valid and effective to create a lien on the homestead of said Warwick and wife. The field notes of the lot owned by Warwick, so far as applicable, are as follows:

"`A part * * * of block 29, town addition * * * according to Phillips & Hawkins' official map of the city of Waxahachie, * * * beginning at the southeast corner of a lot sold by Mrs. Mary Rowan to F. E. Waller, the same being the northeast corner of S. H. Watson and the northeast corner of block 30, T. A., a stake in the west line of Smith street (now Monroe street); thence N. 23¾ E. with the west line of said street 37 1/5 vrs. to a stake in the line of said street and in the south line of the right of way of the Fort Worth & New Orleans Railway (now Park street), a stake 30 feet from the center of said railway; thence N. 53½ W. with the west line of said right of way 52 2/3 vrs. to stake, * * * thence S. 22½ W. about 42 vrs. to a stake in the south line of said block 29; thence S. 66¾ E. to the south line of said block 29 to the place of beginning.'"

Those who own the vendor's lien against this property asked to be properly protected in the event the district court ordered a foreclosure of the mechanic's lien for paving.

The district court rendered judgment in favor of the paving company for the amount of its debt, and also ordered a foreclosure of its mechanic's lien. The property was ordered sold, and the judgment further provided that, if the proceeds of the sale were sufficient to pay both the paving lien and the vendor's lien, then the paving company was to receive its money, and the remainder was to be held in the registry of the court subject to the rights of the holders of the vendor's lien. On the other hand, the district court provided in its judgment that, if the proceeds of the sale were not sufficient to pay both liens, then the money was to be prorated between the lienholders as therein stated. In view of the fact that we do not think the prorating provision of the judgment was correct, for reasons which we shall hereafter state, we do not further outline the details of this provision of the judgment.

The Court of Civil Appeals entered the following judgment in this case:

"There is no complaint of the personal judgment rendered by the trial court in favor of the Texas Bitulithic Company against V. V. Warwick and the same is here affirmed, but the judgment foreclosing a lien to secure the same on said lot is reversed and such foreclosure denied. The Walker heirs did not ask either a personal judgment against Warwick for their debt or a foreclosure of their vendor's lien securing the same, but merely asked in event the property was sold that they be protected in the payment of their debt out of the proceeds. Since the judgment of foreclosure was rendered solely at the instance of plaintiffs and the same has been set aside, the cause as between the Walker heirs and Warwick and wife is reversed and remanded for such further proceedings as may be necessary or proper in the premises." See 288 S. W. 516.

The Court of Civil Appeals, in a very brief way, correctly states the contentions of the parties hereto with reference to the controlling issue before us. In this connection, that court says:

"Plaintiffs contend that, because the field notes under which Warwick held his lot show that the same fronts or abuts on Monroe street, that the court was justified in presuming that he owned the fee in the street to the center thereof, subject, of course, to the use thereof by the public as a highway. The defendants contend that said field notes limit the land owned and held by Warwick to the west line of Monroe street, and rebut any presumption that his land extended beyond said line and included any part of said street."

We are of the view that, upon this particular point, the district court entered a correct judgment. The writ of error was granted in this case upon the fourth, fifth, and seventh assignments of error therein. Said assignments read as follows:

"Fourth assignment of error: The Court of Civil Appeals erred in holding that the contract for paving Monroe street in front of property of the appellants V. V. Warwick and wife, which was duly executed, acknowledged, and delivered by them to the Texas Bitulithic Company, and purporting to fix a valid lien on said property, did not create a valid lien thereon.

"Fifth assignment of error: The Court of Civil Appeals erred in failing and refusing to hold that the paving of Monroe street in the city of Waxahachie by the Texas Bitulithic Company was an improvement of and on the homestead of the appellants V. V. Warwick and wife, upon which said contract created a valid lien.

"Seventh assignment of error: The Court of Civil Appeals erred in denying a foreclosure of the contract lien granted by the appellants V. V. Warwick and wife to the appellee, Texas Bitulithic Company, for the paving of Monroe street in front of their property, even though the property was homestead, since the fee to said property went to the center of said street and said contract granted and fixed a valid lien thereon."

We think aforesaid assignments should be sustained.

The common-law rule in this connection is stated by Chancellor Kent in his Third Commentaries, p. 432, as follows:

"The established inference of law is that a conveyance of land bounded on a public highway carries with it the fee to the center of the road as part and parcel of the grant. The idea of an intention in the grantor to withhold his interest in a road to the middle of it after departing with all his right and title in the adjoining land is never to be presumed."

The reasons for the rule of the common law are stated in 9 C. J. p. 197, as follows:

"Briefly stated, the reasons in support of the rule that the fee extends to the center of the highway may be outlined as follows: (1) The absence of any purpose to be served in the retention by the grantor of a narrow strip of land along the boundaries of the land conveyed, or the absence of any practical use to him for the strip of land. (2) The immediate interest of the vendee therein and its direct and substantial value to him. (3) Grounds of public convenience and the prevention of disputes as to the precise boundaries of property. (4) The embarrassment to alienation and the improvement of property, which it consists with public policy to favor, if a different rule prevailed. (5) The concern of the state itself as to who shall determine and pay for improvements. (6) And in conclusion it has been said: `If no other reason could be assigned in support of this rule of construction, the general understanding of the people, and the extensive and immemorial practice of claiming and acquiescing in such rights, ought to have great weight.'" (Italics ours.)

The Supreme Court of Texas early recognized this common-law rule. In the case of Mitchell v. Bass, 26 Tex. 372, Chief Justice Wheeler said:

"Another question is suggested by the examination of the record, to which, as the case will be remanded for a new trial, it is thought proper to call the attention of the parties and their counsel. The original grants of labors 1 and 2 call for the `national road' as the boundary between them. The plaintiff claims that the space designated for the road remained vacant public land after the...