Wolf v. Brass

• Decision Date: 27 November 1888
• Citation: 12 S.W. 159
• Court: Texas Supreme Court
• Parties: WOLF <I>v.</I> BRASS.

12 S.W. 159

WOLFv.

BRASS.

Supreme Court of Texas.

November 27, 1888.²

Commissioners' decision. Appeal from district court, Travis county; A. S. WALKER, Judge.

Sneed, Pendexter & Burleson, for appellant. Rector, Moore & Thomson, for appellee.

ACKER, J.

Prior to 1872 John T. McArthur owned lots 4, 5, and 6, constituting the S. E. ¼ of block 58, in the city of Austin. These lots lay north and south between an alley running east and west through the block on the north, and Pine street on the south. Trinity street lay east of the lots. In 1872 McArthur cut the lots into tenements, running east and west, fronting on Trinity street, and extending back west 120 feet to an alley 18 feet wide, taken off of the west side of lot 4, extending from the alley running east and west through the block, south to Pine street. It does not appear that McArthur executed a formal deed of dedication for this alley, but it does appear that in 1872 he sold three of the four tenements, and in his deeds of conveyance therefor expressly referred to and designated the alley. One of the tenements so conveyed was sold and conveyed to appellee by Bartholomew, McArthur's vendee, in April, 1886, the deed to him also referring to and designating the alley. In February, 1874, McArthur conveyed to appellant's vendor the deed expressly referring to and designating the alley. The deed to appellant does not mention the alley, but conveys only 120 feet back from Trinity street. In January, 1872, McArthur conveyed to Robinson the north tenement next to the alley running east and west through the block, expressly referring to and designating the alley taken off of the west side of lot 4. In August, 1882, Robinson conveyed this tenement to the Milburn Wagon Company, the alley on the west being expressly referred to and designated in the deed. Appellee owned the tenement between the Milburn Wagon Company's tenement on the north, and appellant's tenement on the south. In 1875 or 1876 appellant inclosed the alley back of his tenement, and some time thereafter the Milburn Wagon Company inclosed the alley back of its tenement. Appellee, Brass, brought this suit July 5, 1886, against the Milburn Wagon Company and appellant, Wolf, for the purpose of compelling defendants to remove fencing and obstructions from the alley, and for an injunction restraining them from ever closing the alley, or using it for any purpose except that of a public alley.

Defendants answered not guilty of the trespass charged, and pleaded the 10-years statute of limitation. The trial was by the court without a jury, and judgment rendered on December 2, 1886, to the following effect: "That the alley was dedicated to the public in 1872; that appellee owned the tenement described in his petition; that appellant and the Milburn Wagon Company had fenced up and obstructed the alley; that the alley be opened, and all obstructions removed therefrom by the sheriff; and that defendants pay all costs." Defendant Wolf alone appealed.

Under the third, fourth, and fifth assignments of error it is contended that the judgment of the court below is against the preponderance of the evidence, both on the question of the dedication of the alley and on the question of limitation of 10 years. We think the fact of dedication was abundantly proved. To constitute a dedication so as to estop the proprietor and his privies there need not be a formal grant by deed, nor is it necessary that use by the public should be continued for so long a time as to raise the presumption of a grant. It is sufficient if there has been some act or declaration upon the part of the owner of the fee,...