69 Tex. 449 | Tex. | 1888
“Out lot” number 114, according to the original plan of the city of Galveston, was bounded on the east by Twenty-ninth street, on the west by Thirty-first"street, on the north by Avenue Q, and on the south by Av-enue R. Ho streets were laid off across it, but Thirtieth street, if prolonged sufficiently far directly south, would have extended through it. On th ninth of June, 1884, one R. R. Lawther was the owner of the entire north half of this lot, by a regular chain of conveyances from the Galveston City Company, who originally laid out and mapped the city. On the day above named Lawther sold and conveyed to one Hatch a portion of his half of said lot, describing it as follows: “Lots 6 and 7 of the northwest quarter of out lot numbered 114, containing -a front of eighty-five feet ten inches on Avenue Q, and a depth of 130 feet on Thirtieth street. Said lots commencing at the northeast corner of said northwest quarter of out lot 114, running west thence eighty-five feet ten inches along the
J. E. Coryelle became the owner of the parcel sold to Hatch, by a regular chain of conveyances, in all of which the same description was followed. At the date of Lawther’s deed to^ Hatch that portion of the out lot which would be embraced in the prolongation of Thirtieth street was within the former’s enclosure, and was occupied by his stables, horse lot and gardens. On the ninth of June, 1875, Lawther sold and conveyed to J. M. Williams, the husband of appellee, another parcel of his half of out lot one hundred and fourteen, describing it in his deed as follows: “All that portion of out lot number 114, in said city of Galveston, which is included within the following bounds, viz: commencing at the northeast corner of said out lot 114, which is at the corner of Twenty-ninth street and Avenue Q, according to the-plan of said city; thence running in a westwardlv direction with the south boundary line of Avenue Q three hundred and eighty feet; thence south on a line parallel with said Twenty-ninth street one hundred and thirty feet; thence east on a line parallel with said Avenue Q three hundred and eighty feet to the western boundary line of Twenty-ninth street; thence with said west boundary line one hundred and thirty feet to the place of beginning.”
This description embraces the portion of the lot now claimed to be Thirtieth street, which portion is the subject matter in controversy in this suit. Williams’s deed was duly recorded on the day of its date. Lawther’s enclosure and improvements remained upon the lot, completely obstructing it for the purposes of a street until he sold to Williams, since which time Williams during his life time and appellee as his widow since his death, have continued to occupy it, maintaining such enclosure and obstructions and paying all tax on the same up to the date of the trial in the court below. It also appears that when Lawther sold to Hatch, he agreed that a street coinciding with the prolongation of Thirtieth street should be opened through his portion of the out lot. . '
The court below found the facts substantially as we have s^fc them forth, though no evidence appears in the record.
This suit was instituted on th§ twenty-ninth of September,' 1884, by the city of Galveston against Mrs. Williams and her
We are of opinion that the court below was correct in both -conclusions. Even if there had been a dedication to the public so far as Lawther was concerned, there never having been any act on the part of the city recognizing or accepting the dedic a- > tion, it must be held under the authority of Gilder v. The City of Brenham, 67 Texas, 345, that it acquired no right to claim the property in controversy for the purposes of a street. The present is even a stronger case against the claim of a dedication than that cited. Here the parcel of land in controversy was -enclosed at the time of the dedication so as to completely obstruct the use of it as a public way, and has so remained until the trial of the case in the court below. In the case cited, the property sought to be claimed had for a long time been left unenclosed and the public permitted to pass over it at will In case of a proffered dedication of a street in a town or city, there must be some act indicating an acceptance of the dedication within a reasonable time. (Field v. Manchester, 32 Mich., 279.)
It may be that the language in the deed from Lawther to Hatch was sufficient to invest the grantee and those holding under him with an easement in the property in controversy, but if so, the right has been lost by the failure to bring suit within five years from the date of the registration of the deeds from Hatch to Williams. The lot being enclosed and the property in controversy being obstructed at the time of the conveyance to Hatch, we are not prepared to hold that the mere fact of its remaining in Lawther’s possession and in the same condition would set in operation the statute of limitation. (Evans v. Templeton, Tyler Term, 1887.) But the sale and conveyance by warranty deed of Lawther to-Williams of the parcel of land which embraced within its boundaries the proposed street, and the occupancy by the latter of the strip in controversy, with the improvements which obstructed the way, were acts unequivocally hostile to the easement claimed by the owner of the domi
Upon the pleadings and the findings of fact by the judge in the court below, no other judgment could properly have been rendered, save one for defendant. It will therefore be affirmed^
Affirmed.
Opinion delivered January 6, 1888.