*1 January Opinion 1952. delivered Rehearing 1952. March overruled v. et al. et al January Decided No. A-3294. Rehearing March overruled 601.) (246 2dW., Series, S.

Lasseter1, Spruiell, Lowry, Potter & Lasater and Charles F. Potter, Tyler all Petitioners, rep Dr. Woldert and those resentated him. Troy Chilcote, Tyler, Smith Ted petitioner, both of Tyler. Appeals holding Civil erred in property that the

involved in this suit had Square,” not been dedicated as “Public holding and also in the sole and unconditional owner was Smith Clements,

County. 347; Lamar 49 Texas State v. 1029; County, 435, 21 Travis 85 Texas S. W. Ramthun v. Half man, Texas Hwikerson, respondents, County.

Weeks & Smith properly The lower courts held was the property involved, herein and unconditional owner of the sole desig- subject the easement of the Streets nated; dedicated had not been that said use; only general public dedicated for park it had jail purposes; and had that said petitioners there- had vested same and none sell 99; Rolwes, Grenet, Adams v. Oswald v. Texas Texas in. 52, 849; Cunningham, *3 Hay 2d 2d 1057. 77 S. W. 228 S. W. of the Court. delivered Mr. Brewster Justice relating judgment declaratory a suit for a This is al., City Tyler, by re- filed Smith et square in the of against Tyler against City a class and as suit spondents, of representing of defendants: al. two classes et Dr. Albert Woldert owning continguous square (2) property and (1) to those townsite, original owning property 100-acre within the those petitioners. respondents judgment affirmed A trial court dis- Appeals, Justice Associate Williams Civil senting. 240 2d 496. S. W. Tyler City and dispute County, the The is between Smith owners, respective to their

the individual square, on it owns contends Smith located, simple, fee hence can move which its courthouse is square anybody it to chooses. the courthouse and sell the except Tyler simple fee title to the asserts a actually thereof. platted used on the four sides to the streets and long claim that has The individual lot owners the use of dedicated as a judgments The effect of the cannot be diverted to uses. County, except for is to the contention of Smith below sustain purposes in that an for street easement surrounding it. occupied now the four streets 1846, legislature By April 11, created statute effective County. com- It Hill others as named one and four James corners, county locate the missioners to mark the lines and to purchase or donation 300 acres “site” to receive donation, or, con- of sale or to in the absence of land for the site town, lay sell the proceed off “and demn 100 acres reserving highest bidder, for a lots court- thereof to the lots they may house, jail, lots as deem neces- Texas, sary.” Laws of Vol. Gammers 1847, 6, conveyed Hill, “attorney

On Pollit Feb. one appointed fact for select and Commissioners locate the Town Tyler,” 100 acres land “for the use and benefit of * ** * * * Tyler, simple Town of forever in fee To have and to parcel hold or said tract of land for the benefit of * * Town of executed, Hill, Commissioners, Before this deed was for the surveyed acres; notes, had the 100 and his field dated October 1846, appear Following signature in the record. his nota- is this begins tion: “The center from the N.W. deg. survey cor. of said 100 acre South 78 28 East 20.15 chains dist. A. H. However, Martin Clerk of the Court.” neither authority reason nor this notation of the clerk to make it is shown. Apr. 18, 1849, Hill and the other commissioners executed

to one plat Ochiltree deed to Lots in Block No. “in the Tyler,” grantee reciting high- said town of had been est bidder at held on plat auction Dec. 1846. That here re- *4 to, however, ferred has not been found. legislature relating

There were three more of acts the to the 26, 1848, matters under al., review. On Feb. Hill et commission- ers, were directed to sell the remainder of the lots in the Tyler of apply proceeds completion and of jail. Texas, By Gammel’s Laws of Vol. act of Jan. 29,1850, the County Commissioners were directed to make to the County Court of Smith proceed- “a correct statement of their ings, the sold, number of lots which have been the amount re- sales, ceived paid and the amount out said Commis- purposes sioners and expended”; for what were re- quired to probable make bond for double the amount in hand. Ibid., p. act, passed 29, 1850, incorporated 483. The third Jan. Tyler, County.” Among “the town things, pro- of in Smith corporation vided “limits that the of said shall extend over one in hundred acres laid off so as to have the square Tyler of said town of corporation in the Center of said Ibid., 60, p. (All limits.” ours.) italics this are 84 April, map

In the townsite of 100 acres was County, filed record in Smith but date the when it was drawn is not shown. It shows the lots and blocks and the bounds dispute; nothing of the designate map but there is on the nature, ownership the or use the 21, 1855, Nov. the Commissioners Court of Smith passed required survey an order Hill that “J. C. Tyler.” did; notes, Town of Hill field This his 23, 1856, July dated Feb. and recorded read or fol- County. public square Tyler, lows: “Field notes of the Smith survey I commenced 6 in. East the centre Original present placed Rock court at house at the commencement of said town. Thence I run from said Beginning North and 200 feet and East and South West square 400 and 700 feet that makes the feet North South including wide feet East and feet centre street West bounding all wide the bal- streets each 50 feet describing Then, after ance of the streets 50 feet wide.” bounds, the notes metes and lots and in the 100 acres blocks on the all “The Blocks and Lots is numbered conclude: above as also map accompanying field notes of said town (This map not names.” been their width and has streets with made, survey found.) had the Commissioners After Hill’s Douglas required May 21, that one “be on ordered Court public square each corner put up one at on the have four rocks directed square,” of this order Court squar'e field of the *5 years later, by the Com- order of And on Jan. with Court, into contract entered missioners City adjoining property pave “around Tyler and owners to the of fifty of feet a distance the of said extending public square for said the out the into from sidewalk 9, 1912, later, July fifty Again, years on distance of feet.” five agreed with the the Commissioners Court east and west ends of the pave on the the streets widen square” “public feet. appointed August Court “a the Commissioners painting purchase enclosure materials the

committee paling was an iron This “enclosure” around Courthouse.” the buildings, each corner from four one off fence which extended buildings, courthouse, all with the the so as to contain five gate through the fence on in the center and with courthouse Appeals four time of Criminal occu- all sides. At one the Court buildings by pied other three used one of the were while county collector, county superintendent tax the county judge, respectively. were courthouse its Thus larger buildings segregated associated from the much “square.” county it set off is That considered as so es- tablished the fact that when the Commissionners Court or- buildings dered it construction two of them directed “said to be built one in the corner northeast one southwest yard equal distance from the Courthouse.” governmental buildings

With the courthouse and other so enclosed from the remainder of the the record shows wholly numerous uses made of the remainder un- which are governmental related to example, or other court use. For it years was used place, market where farmers sold their cotton, garden products, truck, com and farm wood Smith, the like. One witness said that farmers from Henderson bring and Van Zandt counties “would their here and I cotton thirty forty have wagons; seen buyers cotton cotton swarmed it, up.” over filled county That the intended that it should be proved so used is grant- an order of the Commissioners ing to Tyler” privilege “citizens “to build market public squme house on donating pro- said town” and $20 building vided the cost as much as $200. Moreover, freely photo- have used it otherwise. A graph in portion busy record shows a on a day Tyler; completely and the covered hundreds buggies wagons parking and teams —a free lot.

A band stand was built on it and used for the entertainment public. Benches were constructed about Preaching political use. meetings services and were con- years ducted there. For at least two fair was held “public on the west end of the There was a well for *6 86

public generally to draw water from and for their stock.” A testified, county judge dispute, portion former without park outside the enclosure which was around the court- generally purposes used in house was the manner and recounted, portion above inside the while enclosure was general generally purposes used for “the house court seat Government.” controverted, question The facts so it is a stated are not plot law whether show such dedication of the in contro- versy public general public as a for the use of the as that it County now diverted contended cannot be to use as City. long Quoting ago case, from an earlier this court said that 1 throwing public use, open property any to act of without formality, is to of a dedication other sufficient establish the fact public; individuals, consequence in this act to the and if be- so, by purchasing prop- come erty, to have it continue interested Grenet,, 22 owner cannot resume it. Oswald v. Texas Rowles, al 94. And Adams 149 Texas S. W. see et v. 2d any express dedication of the was never

There problem is controversy to determine so our implication, which is a dedication whether the record shows pais. C.J.S., analogous estoppel in doctrine of Dedication, dedication In Sec. order establish unequivocal intention on a clear and there must have been an public use and to devote the supra. Grenet, have acceptance by We public. Oswald this case. concluded that such dedication shown court- between seems to well defined distinction There instance, v. Travis in State house For many County, were lots 85 Texas 21 S. W. Republic belonged to of Austin which blocks originally platted. them city site was Some when the Texas agent Republic uses, and an were reserved designating particular public map marked them on the aof certain north devoted. The half which each to be half was while south marked “Courthouse” block was erected both later Travis marked “Jail.” Some time jail places In this site indicated. and a on the courthouse jail erected on were was abandoned for use a lumber then rented the old block lots. intervened, yard for rents due. The state and later filed suit *7 having claiming This court held that the block title to the block. jail purpose a and dedicated the limited courthouse been to having abandoned, and the reverted to site that use block “If the land But in course of the it was said: the state. if, instance, unqualifiedly dedicated to had been uses — upon plat written the instead the words Park’ had been ‘Public ‘Jail,’ public, and we think the of the words ‘Courthouse’ as well lots, purchasers adjacent acquired would then as the have beyond power property the either of the state or county or affect.” to divert park” plat “public on a means a dedication for

2 If written jail, a a as a courthouse and the much broader use than site by public’s an of the to which use is not lost abandonment use, why jail repeated we no reason the and courthouse see County by uniform use the Commissioners Court of Smith referring phrase “public square” con- in in the given significance troversy should not broader than mere use be significance given courthouse, a as site for that broader court, instance, Clements, Texas, in this Lamar Co. v. above, 1848, just years 347. As stated in two after Smith organized, was Commissioners Court ordered sale at “public auction of the courthouse then on the suare.” In 1851 they “public ordered a new courthouse to erected on the square.” “public In survey ordered Hill J. C. squareand, “public after Hill had made field his notes of the square,” Douglas put up the court ordered that rocks at each “public square” corner of the and that clerk record “public square.” early-day Hill’s field of the *8 today “place enjoyment rest,” enjoy they a use it “to landscaping roses, shrubbery put and various has According weight authority, to the this establishes there.” acceptance, Jur., Dedication, we so hold. 16 Am. Sec. undisputed evidencing facts dedication and Under 3 century general unquestioned more after than following dedication, accepting justly it cannot be said square private can now convert the that Smith use. course, county may present square abandon as a Of site chooses; new courthouse it build wherever that, im- if it elects to do the entire must remain but general public pressed of the with to use purposes; it cannot be diverted to Lamar uses. Co. v. Clements, Texas, 347, supra. 49 management simple fee as well as its title opinion, with control consistent this will remain in

and County. Clements, supra. Lamar v.Co. necessarily disposes we have

4 What by the claims asserted City Tyler, except its assertion of an easement running strip through 90 feet wide and south north the center purposes. for street wholly That claim is based on the field notes 25, 1856, quoted, made J. Hill on Feb. C. above in which he recites, “that makes the 400 feet North and South including feet East and wide West the centre street feet ** Although recorded, *.” did order these *9 However, point: respectfully makes this “We submit clarify declaratory this Honorable Court should its judgment respective opening as to the 90-foot street through tract, Broadway, so as to connect two ends when portion if any occupy courthouse is moved and does not Although expressed 90-foot area.” fear is may held, we County says: have so do not believe this “We language Hororable Court intends for the used in its mean any that no opened such street can ever be under circum- nothing stances.” That founded, belief is well there is our original opinion fairly being susceptible which is construed as holding Broadway any cannot ever or under circumstances through extended when and if the courthouse moved to some other or elsewhere “and does any occupy portion not of said area.” 90-foot 1175, city. provisions is a home-rule of Art. Under the 15, Stat., right Sec. Anno. Vernon’s Civ. it has the eminent purposes appropriate domain “to necessary governing deem it authorities shall

whenever * * * * * * * * following any purposes: streets *. power hereby shall include the conferred eminent domain right governing authority, expressed, to take when so authority power the fee lands condemned and such so pur- public property shall condemn include the poses.” (Italics ours.) question Land Co. pro This in Central is discussed con 478, 2d 105, 4 N. Rapids, L. R. W. v. Grand 302 Mich. A. thereto, particularly III a. in Anno. in the Annotation Kingsville Independent Dis- If School counsel will refer (Civ. App.), 2d et W. trict al. v. et al. 164 S. Crenshaw (error dismissed, desired judgt.) find how the will cor. may condemna- accomplished without resort result even proceedings. tion rehearing

Motions overruled.

Delivered March Republic Supply Company. A. F. & et al Jones Sons March A-3438. Decided No. Series, 853.) (246 W., S. 2d to record “the notes Clerk Tyler” Hill had made. town of which 24, 1851, May Commissioners * * * and erected house be built decreed court “ordered and * * *.” town the centre on August 22, 1948, “that had directed after an order on This was standing public square” sold at on the house now the court public auction.

notes That this concept scope of the use of the was shared governing later bodies of Smith shown order authorizing paving in Commissioners Court around “public widening square” and that in 1912 the streets on the “public square.” hand, east west ends of the On the other single a not order of the Commissioners Court is shown which body regarded anything indicates that that ever as public square. less than But are other orders which show regarded being that as devoted to more than uses as courthouse refer to the fact We 1854 the court painting paling enclosing ordered the of iron fences then appurtenant buildings courthouse and the four off each —one corner of the courthouse —from the rest of and to buildings appurtenant fact that as to two of these the court and the northeast the south- built ordered one yard. corner of the courthouse west unmistakably very facts show that from its think We never did intend that beginning would purposes and uses but did intend to courthouse restricted general public uses would be but one and devoted. dedicated it was to be which public accepted no dedica- can be doubt that There parking They place, place, it as market as a used tion. rest, place preaching as a entertainment serv- place for get meetings, place political for them- water ices according stock, undisputed testimony, selves their

notes any indicating any was never other act intention to dedicate contrary, square. street across the the courthouse then, remained, very and has on 90 feet ever since described. Therefore, any we hold there never was dedication city. purposes, feet to street as claimed Judgment judgments It follows that are below reversed. nothing, except is here rendered that Smith take opinion, otherwise indicated this and that nothing take except its admitted four streets easement bounding now judgment rendered Otherwise petitioners, owners, ah, Dr. Albert lot Woldert et the individual they represent. and the classes Reversed and rendered. January 16, Delivered ON REHEARING. delivered the of the Court. Mr. Justice Brewster Both Smith and the have filed motions rehearing. be, they haveWe concluded that should are, overruled.