Zachry v. City of San Antonio

• Decision Date: 05 June 1957
• Docket Number: No. A-6160,A-6160
• Citation: 157 Tex. 551,305 S.W.2d 558
• Parties: H. B. ZACHRY, Trustee, Petitioner, v. CITY OF SAN ANTONIO, Respondent.
• Court: Texas Supreme Court

Page 558

305 S.W.2d 558

157 Tex. 551

H. B. ZACHRY, Trustee, Petitioner, v. CITY OF SAN ANTONIO, Respondent.

No. A-6160.

Supreme Court of Texas.

June 5, 1957.

Dissenting Opinion Filed Oct. 9, 1957.

Rehearing Denied Oct. 9, 1957.

Carl Wright Johnson, Lang, Byrd, Cross & Ladon, Johnson, Hite & Callender, San Antonio, Looney, Clark & Moorhead, Austin, for petitioner.

Carlos C. Cadena, City Atty., San Antonio, Hollers & O'Quinn, Trueman E. O'Quinn, Austin, for respondent.

GRIFFIN, Justice.

This is a suit by respondent, hereinafter called City, against petitioner, hereinafter called Zachry, to cancel and set aside as void a lease contract entered into between City and Zachry on October 15, 1953 pursuant to an ordinance duly passed by the Council of City. By the contract City purported to lease to Zachry for a period of 40 years the right to construct and operate an underground parking garage beneath Travis Park in the City of San Antonio. Upon a trial before the Court, judgment was rendered setting aside and canceling the contract and refusing Zachry any recovery on his cross action against City. Upon appeal this judgment was affirmed. 296 S.W.2d 299. We affirm the judgment of the Court of Civil Appeals.

Shortly after the contract was entered into between the City and Zachry, Mrs. Rena Maverick Green et al. filed suit in the nature of trespass to try title alleging that they were the heirs of one Samuel A. Maverick, who, more than 100 years prior to suit, had dedicated the land upon which Travis Park was located for the use of the public as a public park or square; that the dedication was made in such manner that the park would revert to dedicator, his heirs and assigns, should the land cease to be used as a public park; that the lease between City and Zachry constituted a use of the park contrary to the purposes for which it had been dedicated, and, therefore, title had reverted to Mrs. Green et al. Final judgment was rendered against Mrs. Green and in favor of the City as the owner of the fee simple title to Travis Park. Green v. City of San Antonio, Tex.Civ.App., 282 S.W.2d 769, 773, wr. ref., n.r.e.

In that suit the City made common cause with Zachry in upholding the lease contract herein sought to be set aside by the City. Also in that case the Court said: '* * * It is admitted by both sides that Travis Park has been maintained as a city park by the City of San Antonio for approximately one hundred years, and thus there can be no issue as to whether the subject property has been dedicated to park purposes. * * *' In our present case it was stipulated 'that the land now known as Travis Park has been maintained by the City of San Antonio as a plaza, square or park for more than one hundred (100) years next preceding the institution of this suit.' The evidence shows it has been used as a park and was being so used at the time of the trial of this cause.

In executing and enacting the ordinance and lease contract involved in this suit, the City Council made a number of findings of fact. Generally speaking, the findings of fact have to do with the crowded traffic conditions of the San Antonio streets in the vicinity of Travis Park; the necessity for off-street parking facilities as a protection to the lives of the City's citizens, and also to assist the City's civilian defense plan. The City Council also found 'that the subsurface of Travis Park is useless and unusable as a public park and there is no immediate prospect of any use for such subsurface in the foreseeable future, and is of no value to the City in its present state and will continue to have no value unless it can be used as an underground or off-street parking facility; that the construction, operation and maintenance of an automobile parking garage in the subsurface area of the park will not materially interfere with or be inconsistent with the use of the surface area by the public as a park,' since in the proposed plan of construction the 'park will be restored and its beauty enhanced.'

The trial court filed what is denominated as its 'District Court's Holding.' Among other things, he stated that the City held fee simple title to Travis Park; that by virtue of the use of said park for more than 100 years it has been dedicated by public use to the public as a city park; that the use of the park 'cannot be diverted to an inconsistent use.' Further the trial court said, 'having permitted Travis Park to become dedicated to the public for use as a public park * * * and since the public is still using said park as a city park, though the City acquired fee simple title thereto in its proprietary capactiy, this title is now subject to the rights of the public accruing by reason of the dedication, and cannot be diverted to an inconsistent use.' And also, 'The defendant's (Zachry) plea of estoppel is overruled.' The trial judge then entered a judgment declaring the ordinance and contract null and void and of no force and effect whatsoever.

(1) It is the general rule that where land has once been dedicated to public use, such as for park purposes, no use inconsistent with its use as a park can be made of the property so long as the public is still using the land as a park. San Antonio v. Lewis, 15 Tex. 338, 393; State v. Travis County, 85 Tex. 435, 21 S.W. 1029; El Paso Union Passenger Depot Co. v. Look, Tex.Civ.App., 201 S.W. 714(1), affirmed Tex.Com.App., 228 S.W. 917(1); City of Tyler v. Smith County, 151 Tex. 80, 246 S.W.2d 601, 606; City of Dallas v. Gibbs, 1901, 27 Tex.Civ.App., 275, 65 S.W. 81, 83, wr. den; City of Waco v. O'Neal, Tex.Civ.App.1930, 33 S.W.2d 205(1), wr. ref.; 14-B Tex.Jur. 392, Sec. 44; 26 C.J.S. Dedication § 54, p. 536; 26 C.J.S. Dedication § 65, p. 557; 38 Am.Jur. 166, Sec. 487; 39 Am.Jur. 810, Sec. 13; McQuillin, Municipal Corporations, Vol. 10, p. 109 et seq.; Id., pp. 130-131; Annotations 18 A.L.R. 1246; Annotations 144 A.L.R. 487. We are aware of the holding of the cases that a dedication made by a municipality is construed less strictly than a dedication made by an individual. Also there are cases which hold that if the municipality owns the fee title to a tract of land and has dedicated it to the use of the public, the municipality may change the use of the land so long as the new use is for the public benefit.

In the case of San Antonio v. Lewis, 15 Tex. 388, cited above, the Court discusses the rule of the French and Spanish law as it affected an alienation of a part of Main Plaza in the City of San Antonio. It was there held that the right of the public to use Main Plaza as a park or recreation place could not be taken away by an attempted conveyance by the authority having control of the property.

In State v. Travis County, 85 Tex. 435, 21 S.W. 1029, in discussing the rights of the State of Texas and Travis County in a tract of land in the City of Austin, it is stated that since the tract of land was no longer needed for the use to which it had been dedicated for courthouse or jail purposes, the County could abandon the rights it had in such tract. That case specifically recognizes that had the tract of land been dedicated and used as a public square the County could not put the land to use inconsistent with the dedicated use, so long as the public continued to use the land as a public square.

The case of El Paso Union Passenger Depot Co. v. Look, supra, was a case where the City of El Paso had dedicated a tract of land as a public park to be maintained by the Depot Company. The park was used by the public as such including the date of the trial. Later the City became involved with Look and others over the title to a street which ran west and southwest of the park. In settlement of this first suit, the City agreed that it would build a concrete sidewalk 14 feet wide along the south boundary of the park so that Look et al. could construct their stores adjoining and facing the sidewalk and thus use the sidewalk for their own purposes. The public also had free access to and use of the walk. The opinions of the Court of Civil Appeals and Commission of Appeals each held that such use was inconsistent with the use of the park by the public, and enjoined the City from building the sidewalk. While the charter of the City of El Paso had an express provision against alienation of park property, neither court relied exclusively upon such charter provision. Each court recognized the general rule that the City of El Paso had no power to put the park to a use inconsistent with its dedicated uses.

The case of City of Tyler v. Smith County, 1952, 151 Tex. 80, 246 S.W.2d 601, 606, involved the right of Smith County to sell the public square to private parties and thus cut off the rights of the public to use the park or square. This Court said:

'Under these undisputed facts evidencing dedication and after more than a century of unquestioned general public use following and accepting such dedication, it cannot justly be said that Smith County can now convert the square to private use. Of course, the county may abandon the present square as a site for a courthouse and build a new courthouse wherever it chooses; but if it elects to do that, the entire square must remain impressed with the right of the public to use it for general public purposes; it cannot be diverted to private uses. Lamar County v. Clements, 49 Tex. 347, supra.'

Petitioner relies upon the provisions of the San Antonio charter and the fact that San Antonio is a Home Rule city as authority for the City to make the contract with Zachry. Article 1, Section 3, paragraph 1 of the City Charter under the heading 'General Powers' provides in part that '* * * the City may purchase, take, hold, acquire and convey, lease, mortgage and dispose of any property whatever within the city limits * * *.' 'Paragraph 7.-Street Powers' provides in part that 'the City of San Antonio shall have the power to lay out, establish, open, * * * abandon, discontinue, abolish, close...