Vasser v. City of Liberty
| Decision Date | 03 April 1908 |
| Citation | 110 S.W. 119 |
| Parties | VASSER et al. v. CITY OF LIBERTY et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, LIBERTY County; L. B. Hightower, Judge.
Action by the city of Liberty and others against W. L. Vasser and others to recover the title and possession of land in which B. M. O'Brien and others intervened. From the judgment, plaintiffs and certain of the defendants appeal. Affirmed in part, and reversed and remanded in part.
Stevens & Pickett, for appellants. R. D. Wright and F. M. Stevens, for appellee city of Liberty. Marshall & Marshall and I. B. Simmons, for other appellees.
This is, in the main, a contest between the county and city of Liberty and others over the title and right of possession of a parcel of ground situated in the city of Liberty, and known as "Jail Square." On March 20, 1904, the city of Liberty sold and conveyed by warranty deed, for the consideration of $850 cash, to S. Goldstein, the east half of said jail square, and on August 12, 1904, sold and conveyed to W. M. Jones by warranty deed, and for the consideration of $500 cash, the southwest quarter thereof. Thereupon, on July 17, 1906, the said county of Liberty instituted this suit against the said Goldstein and W. L. Vasser and others, successors in title to W. M. Jones, to recover the title and possession of said property. Various grounds are set out as a basis for such recovery—that the property was granted by the state of Coahuila and Texas to the municipality of Liberty, and that the county of Liberty is the successor of the municipality; dedication by the state; dedication by the city; estoppel and limitation. Goldstein and others vouched in the city of Liberty on its warranty, and prayed judgment for the amounts paid by them respectively for those parts of the jail square bought by Goldstein and W. M. Jones. They also set up that the property was sold for the express purpose of paying certain bonds issued by the city of Liberty for the erection of a city hall and schoolhouse, said sale being authorized by the city council for that purpose; that the money was applied to the payment of said bonds; that the city of Liberty is insolvent, and has no means of paying the amount adjudged on its warranty, all money which can be raised by taxation at the rate authorized by the Constitution being required for payment of current expenses, so that they will be remediless unless they are subrogated to the rights of the holders of the bonds paid off and discharged by the money paid by them, for which they pray. They contested the right of the county to the land. The city of Liberty set up their right to the property, denied the title of the county, and denied the right of Goldstein, to subrogation. B. M. O'Brien and others, citizens of the city of Liberty owning property adjacent to jail square, intervened, claiming that the property was dedicated to public use, and could not be diverted to private use, as was attempted to be done by the sale by the city of Liberty to said Goldstein and Jones, and prayed that said deeds be canceled and the parties be enjoined from private use of the property. The case was tried by the court without a jury, and judgment rendered in favor of the county of Liberty as to the right of the property, in favor of Goldstein, Vasser, and others against the city of Liberty on their respective warranties, but denying them the right of subrogation, and in favor of O'Brien and others, interveners, enjoining the use of the property for any private purpose. From this judgment the city of Liberty and Goldstein, Vasser, and others have appealed. No conclusions of law or fact are found in the record.
It is not contended on this appeal by any of the parties that the city of Liberty, even if it be, as contended, the owner of jail square, had the right to dispose of it by sale to private individuals, as was done; nor is any complaint made here of the judgment against the city of Liberty on its warranties. So there will be no further discussion of these issues.
The property in question is a part of the four leagues of land granted to the municipality of Liberty by the government of Coahuila and Texas. 1 Gammel's Laws, p. 182. The county of Liberty came into existence as a county of the Republic of Texas in 1837. 1 Sayles' Early Laws, art. 404. The town of Liberty was laid off and established in 1831, and was regularly incorporated by act of Congress approved June 7, 1837. 1 Gammel's Laws, p. 304. Section 6 of this act provides that: "Whereas there are four leagues of land belonging to said town which are now useless, the trustees shall and are hereby authorized and empowered in conjunction with the county court of the county of Liberty, to alienate said lands, or such portion thereof as they may deem advisable; the proceeds of such sales to be by them jointly appropriated to the construction of a courthouse, jail and such other public buildings and for such other purposes as they may think proper." By act of Congress of the Republic approved February 5, 1840, the Commissioner of the General Land Office was required to issue patents to the trustees of the town of Liberty to the four leagues of land belonging to said town in accordance with the terms of the colonization and other laws making the concession of the four leagues to said town, in accordance with which patent was issued December 31, 1841, to the trustees of the town of Liberty and their successors in office. Certain open spaces or squares are delineated on old maps of the town, one of which is marked "Courthouse" and another "Jail." We have had little assistance from the briefs in the matter of presenting a statement of the facts with reference to the use of this jail square, and the evidence in the record is so presented as to render it difficult to do so. We find, however, that very early in the history of the town, about 1848, a courthouse and other public buildings were erected by the town council for the use of the county. One of the public buildings was probably a jail. At any rate, at a very early date some sort of a jail was erected on jail square for the use of the county, and this jail was located very near the center of the square. This jail was afterwards replaced by a more substantial structure, located at nearly the...
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