49 Tex. 347 | Tex. | 1878
Where a dedication to public use is sought to be established from the acquiescence of the owner in the use of the property by the public, or from acts or declarations of an equivocal character which are consistent with a dedication to public use, or from the mere permissive •use by the public for a temporary, though indefinite period of time, the intention of the owner in permitting such use is unquestionably of controlling importance in determining whether property has been dedicated by the owner to public use or not. (Dillon on Mun. Corps., secs. 498,499; Irwin v. Dixion, 9 How., 30; Manderschid v. City of Dubuque, 29 Iowa, 73.)
But where .the dedication is clearly manifested by unequivocal acts or declarations, upon which the public, or those interested in such dedications, have acted, the fact that the owner-may have entertained a different intention from that manifested by his acts or declarations, is of no consequence. It has been repeatedly held by this court, as well as by many others, that where the owner of land lays out and establishes a town, and makes and exhibits a map or plan of the town, with streets and public squares, and sells the lots with reference to such plan, the purchasers acquire, as appurtenant to their lots, all such rights, privileges, easements, and servitudes represented by such map or plan to belong to them, or to
The charge of the court is fully sustained by these decisions. It therefore follows that it did not err in refusing to instruct the jury, that to constitute a dedication to public use, the county of Lamar must have actually and in fact intended to dedicate the property in question to the use of the purchasers of the lots contiguous to it, or to the citizens of the town, as contradistinguished from its dedication or reservation for a public purpose, as a public square for a court-house, for which it was the duty of the county to provide. Such an instruction was not .called for, and would have in no way tended to enlighten the jury, or lead to a proper determination of the case, but would have more probably misled them.
Eor did the court err in refusing to instruct the jury, that “A dedication of properb* public use occurs when the owner abandons the up pancy, and control of such property to the public" cation may be made by any means which clear1 __i intention on the part of an owner to give up and surrender the use- of the same to the public.” This instruction as asked might no doubt be appropriate in many cases; but it was not called for here; and, from the manner in which it is drawn, it was calculated, if not designed, to lead the jury to infer, that in order to dedicate property to public use it was necessary in all cases that the owner should entirely abandon all use, occupancy,
Uor does it follow, because the property is dedicated to a use which it is the duty of the owner to provide, but which is also essential to the public, and beneficial to'the purchasers of contiguous lots, that after the property has been dedicated to such use, and individuals have made investments on the faith of such dedication, it can be converted, to their injury, to an entirely different and inconsistent use. For example, where land has been given to a county to be laid out for a town for a county site, until the town thus established is incorporated it is certainly the duty of the county to see that it has necessary streets, or public highways, as well as to make provision for a court-house. But would it be insisted, that, after lots have been sold by reference to a map or plat showing such streets, the county could appropriate the ground occupied by them, without the consent of the citizens of the town, and to the detriment of the owner’s of particular lots, to some other inconsistent purpose ? If not, how can it be said, if lots on a particular square are sold and conveyed in view of its dedication as a public square for a court-house, that the county may convert such public square, to the detriment of purchasers of such lots, into private and individual property ? It is a matter of common knowledge, that lots contiguous to public squares thus used are esteemed as much more valuable than similar lots not thus situated; and the evidence shows that lots on this square sold for more than four times the amount which similar lots in the same block commanded, simply from the fact that they fronted upon this square.
Certainly, then, it can make no difference, as regards the
If the owner of land indicates by the map, or by other unequivocal acts or declarations, that a particular lot or square is to be reserved or applied to a particular or specific use of a gimi-public character, and such as to induce purchasers of contiguous or neighboring lots to give a higher price than they otherwise would, the use to which such lot was to be appropriated would no doubt be a reservation, and not,"strictly speaking, a dedication to public use. But, nevertheless, the difference, so far as the owners of lots purchased on the faith of such reservation are concerned, is mei-ely nominal; for the owner of the property who thus sells it is estopped from appropriating the lots or square so reserved to a purpose inconsistent from that for which it was reserved; or he will be held to have by such sale created a servitude in the property reserved, in favor of the dominant estate which he has conveyed, which will prevent his applying the reserved property to any other use than that for which it was reserved. (Harrison v. Boring, 44 Tex., 255.)
"We need not say—for the court did not hold, and appellees do not claim—that the dedication or reservation of the property did not prevent the county from removing the court-house to any other locality. The right to change the locality of its court-house whenever public interest may demand it, is a political right, of which the people cannot be estopped or deprived by the action of the County Court, whenever they see fit to do so in the way pointed out by law. But while the county of Lamar cannot estop or bind
There is no error in the judgment, and it is affirmed.
Aeeirmed.
