*1 subrogated liability to the evidenced note, LINDNER, ux., step not into the shoes of Appellants, he does et course, payee, he holder in due nor is knew, presumably he Harris because note, agreement
paid off the of his Jr., al., HILL, Appellees. et Frank Y. primarily he liable Shindler that was Therefore, parol No. 04-83-00328-CV. neither the on the note. chapter 3 rules rule nor U.C.C. Texas, Appeals Court required governing negotiable instruments Antonio. San objec- appellee’s to sustain the court below testimony. to Shindler’s tion April Rehearing May Denied jury found that Shindler was note, maker on the who an accommodation Harris; to lend his credit to signed
had it carry agreement;
that Harris breached notes to Harris
and that Shindler’s demand carry agreement were not to
under until made all
become effective Harris had
payments required by agreement. that find
There evidence to these
ings did not err therefore court take-nothing judgment
entering a for Shin-
dler. judgment against appellants
Because in their
must be reversed for errors raised points, find it unneces-
fifth and sixth we
sary remaining to address the issues raised appeal. this judgment of the trial court is re- part judgment
versed is rendered nothing against take de- Harris Shindler, individually
fendants James C. trustee, Cohn,
and as Morton A. individual- trustee, Greer,
ly and as John M. individu- trustee,
ally Rizk. The and as and Fred E.
portion of the trial court’s effec-
tively denying any recovery against Shin-
dler/Cummins, venture, Inc. and the IH-45 any recovery against Shindler on
note, All court costs are is affirmed.
charged appellee.
EVANS, C.J., participating. not *2 Maverick, Antonio, appel-
Chilton San for lants. Hill, Boerne, appellees.
Frank Y. BUTTS, REEVES, TIJERINA, Before JJ. OPINION
BUTTS, Justice. appeal Plaintiffs from a declar- ing that Lindner Road is a under the doctrine dedication. Plaintiffs Harvey Lindner and his wife 1,528 present Ruth are the owners of the through acre ranch which Lindner Road passes in an east-west direction for a dis- trial, During tance of plain- 1.3 miles. tiffs, Ruth, objection, petition amended their to include their sons, Steven, plaintiffs. Mark and De- Hill, Jr., county fendants are Frank Y. at- torney County, of Kendall William R. Whit- worth, county judge, and members the Kendall Commissioner’s affirm. court. We grandfather, Harvey’s Herman Road and' constructed first built Lindner (at Lind- the intersection of Holiday School FACT OF FINDINGS roads) ner and the late nine- neigh- century help teenth with the of some controversy, referred road in A. The bors. The record does not indicate Road,” Plain- traverses as “Lindner however, death, Herman At his died. generally East-West tiffs’ father, son, Lindner, Harvey’s Hubert 1.3 miles. To the a distance of direction *3 in owned the ranch until his death 1947. property, it intersects of Plaintiffs’ east died and his three heirs Hubert intestate Road,” “Holiday admittedly is a which Harvey, Emmie, were his wife his son and county and which leads to the Town road Harvey daughter pur- his Murff. Odedda To west of Plaintiffs’ of Comfort. the one-fourth in- chased sister’s undivided to property, it intersects a road referred 1961, executing $5,000.00 terest in a ven- “Mill-Dam Sons Road” or as “Herman lien note. At Emmie’s death dor’s Road,” admittedly county road which is a bequeathed Harvey she a life estate the with a which leads to and intersects and ranch, grandsons, remainder to her Mark Drive”, designated “Skyline road Together, the plaintiffs and Steven.1 27. Highway State No. and property the interest in only this suit have established the ranch where the road is located. “Lindner Road” B. title, Her- predecessor in by Plaintiffs’ up in sprung New subdivisions have early late 1880’s man Harvey and has area testified that he re- by the residents provide to access 1890’s cently experienced problems garbage with and community “Holiday Road” to dumped hunting at the side of and School, for was located which from the road. Plaintiffs closed intersec- near the approximately by locking gates its Road four in June of “Holiday of “Lindner Road” and tion gates 1982. These had been closed from by used Road,” open to and and has been time, they to had time but never been west of east and public from the Hill, In August locked. Frank coun- 1930’s. since the Plaintiffs’ ty attorney, Harvey wrote letter a threatening criminal action unless fenced, “Lindner Although never C. gates Road, to Lindner he stated is there and clearly defined is Road” road, public was a were unlocked. location, its change in gates, legal by unlocked but took action established. being since or course width alternatively (1) pleading declaratory for private that Lindner Road ais “Lind- D. have existed across Gates road, (2) injunctive to prevent relief latest, 1949, at the with ner Road” since interfering Commissioner’s Court from of Plain- acquiescence and the consent plaintiffs’ roadway, sole use of the jt time, tiffs, was main- prior and that plaintiffs’ quieting and to Lind- title community. by residents of the tained ner Road. repaired has and E. Trial was before the court with Road” since “Lindner maintained jury. out a The trial court filed acqui- latest, consent and with the at the fact and conclusions of law: Plaintiffs, prior and escence of by residents of time, maintained it was 1. The Lindner tree be of use: family may community. open to has been “Lindner Road" F. generally since by used interruption and early 1900’s without permission. When obtaining without roads in the flooding other on there area, provides only- reasons, “Lindner Road” following C. For impliedly access some members of the road is dedicated to use. Camp, the Herman Sons Home and period years, 1. For a of at least 50 Baptist Camp. predecessors Plaintiffs and their in ti- predecessors their G. Plaintiffs and open tle threw the road to use. in title have used “Lindner Road” in com- period years, For a of at least 50 mon with the the road has been used 1960’s, H. the late interruption and not mere “Skyline know was estab- Drive” [sic] permission. “Holiday lished which intersects Road” reputation The road has the approximately 2.5 miles north of Plain- being a public road. Property. “Skyline tiffs’ Drive” is nar- 4. The road has been maintained maintained, steep poorly row and has the County acqui- with the consent and *4 grades, impassable becomes in wet period escence of Plaintiffs for a weather and is hazardous for use years. more than 30 emergency school buses and vehicles. public injured 5. The if will be 10, 1949, I. On October the Commis- road is closed. County entered sioner’s Court of Kendall 6. The use of the road has not been Order, 7, Page in an of record Volume particular persons. limited to a class of Minutes of Commissioners’ Court appropriation 7. The of the road to County, purporting to establish has accepted by public been “Lindner third-class Road” as a use thereof. prede- road. Neither Plaintiffs nor their 8. predecessors Plaintiffs and their in applied cessors title to the Commis- kept gates in title unlocked for sioners’ Although Court for such action. approximately years. Harvey Plaintiff Lindner owned an undi- 6812h, V.A.C.S., not D. Article should in property upon vided interest which given retrospective application be be- located, given the road is he was no so, cause, destroy to do would a vested application any pro- notice of the or of right substantive of the [Cita- ceedings of the Commissioners’ in Court tions omitted]. thereto, regard and he received no com- pensation taking for the of the road. findings When of fact and conclusions of Harvey Plaintiff Lindner had no actual conjunction law are filed with a state knowledge Commissioners’ Court findings these sus ment of facts will be August, Order until any support tained if there is evidence to Freeway them. Lumber Co. v. Hous Gulf
II. 'CONCLUSIONS OF LAW Trust, ton Realty Investment [14th Dist.] A. The Court Order Commissioners’ — Houston McDONALD, 1970, writ); no 4 R. TEXAS 10, 1949, purporting to estab- October § (rev.1971). 16.10 CIVIL PRACTICE county road lish the road as a third-class findings jury equivalent Such are to a ver jurisdiction is void for want of as to issues, special dict on and should not be Plaintiff Lindner because said upon appeal they sup if are disturbed pro- given Plaintiff was no notice of the evidence, they ported by competent unless ceedings incident thereto. against appear preponderance prede- and their B. Because Plaintiffs the evidence. Houston Natural Gas in title used the road in common cessors (Tex. Pearce, Corp. public, the with members of the use of n.r.e.); Civ.App. writ ref’d — Houston permissive the road § McDONALD,supra R. at 16.05. adverse, law, matter of and not as a points Plaintiffs raise ten of error. by prescription easement ma- points through eight, plaintiffs of error one tured. (1) purchase; trial court’s find- challenge following circumstances: specifically (4) dedication; (3) condemnation; law. Since and conclusions of ings of fact possession. adverse prescriptive ease- judge the trial ruled out G) in' his (Findings Fact P and ment es- has been (b) interest Once appellees do not raise this as findings and with Subsection in accordance tablished appeal, decline to discuss cross-point on we section, interest must be (a) of this Rather, on the focus our attention it. we commis- records of the in the recorded sufficiency of the evi- legal and factual county in of the sioners court judgment that Lindner dence to sustain the road is located. impliedly dedicated. Road was Contest correctly note Defendants person asserting Any Sec. attacking many points of error title, private in a road in right, or interest fact do not assail the interest has been asserted which a findings. How failing those 2 of this Act in accordance with Section ever, clarity regarding interest of court in the file suit in a district may and because requirements of dedication the road is located within county which evidence, do assignments two in the after the notation two they as if arguments address the we will court of records of the commissioners insufficiency of the evidence. all assert public interest the road. legal look at the and factual suffi We will *5 ciency the trial court’s dedication Verbal error, plain point of fact. In the tenth Act, of this purposes For Sec. implied tiffs contend that the doctrine of intent nor dedication neither verbal permits taking dedication a without com to es- is sufficient by overt act dedicate pensation. argument this last Since road. private in a interest a tablish appeal, do raised for the first time on we Wright v. Allstate Insur not discuss it. use; maintenance Public Co., 376, (Tex.Civ. ance 285 S.W.2d 380 Act, purposes of this For the Sec. 5. n.r.e.) (on 1955, Mo App. ref’d writ — Dallas by private of a the use neither Rehearing). tion for the owner permission of public with the point plaintiffs of error nine funds of with the maintenance nor argue implied dedication is barred. public interest no private road which TEX.REV.CIV.STAT.ANN. art. 6812h provided by Section has been recorded (Vernon Supp.1984) provides: to establish 2 Act is sufficient of this roads; 6812h. acquisi- Art. Private possession. adverse 50,- tion of interest counties population with on counties Effect 000 or less 50,000 greater than no effect Act shall have 6. This See. Definition greater than population on counties Act, Section 1. In this “dedication” preceding 50,000 according to the last explicit, means the written communica- census. federal tion to the commissioners court of the adopted this statute legislature county in land is located of a popula- has a 1981. Since voluntary grant private of the use of a 10,635 according to the 1980 Federal tion of public purposes. road for Census, applies prospectively, statute apply retro- it does not find that but we
Public interest itself The Texas Constitution spectively. (a) county may Sec. 2. A not estab- retrospective prohibits the effectuation lish, acquire, any public or receive inter- affect substan- as such laws laws insofar § private except est in a I, 16; under Lot- art. rights. TEX.CONST. tive 616 State, to v. 563, 867, (Tex.Civ.App. Paso (Tex.Civ.App. 208 564 869 S.W. S.W.2d — El 1963, writ). 1919, writ). Implied dedication is a —San Antonio no no Since Whitfield, 621 fact. Malone v. implied doctrine of dedication establishes 1981, 192, (Tex.Civ.App right, substantive this statute cannot be — Waco n.r.e.).
retroactively applied right ref’d to abolish such a writ arising enactment of the statute in before four elements There are distinct 1981. Point of error nine is overruled. dedication, express or im whether establish applicable, Where no statute is (1) person making the dedication plied: common law controls. United States Cas so; ability to do he must must have the Rice, (Tex.Civ. 760, ualty v. 18 S.W.2d he can dedicate simple have fee title before 'd). 1929, App. writ ref Under — Dallas there must be a property; law, private property common an owner of dedication; (3) the purpose served impliedly make expressly could either or express either an person must make Moody v. dedicate. known his intention to offer; (4) there must be an implied White, (Tex.Civ.App.— 593 S.W.2d Spinuzzi v. acceptance that offer. writ). Corpus no Christi Anderson, Corinth and Town of Express dedication is achieved Worth, 1983, (Tex.App. — Fort supra at document, Moody, deed or written White, supra at 378. writ); Moody no City, 362 S.W.2d 378; Henderson v. Frio require- question is the four whether Antonio — San are shown sufficient ments writ), re implied whereas dedication based on supporting on quires unequivocal a clear and intention is that requirement The first dedication. appropriate part landowners making must person the dedication Moody, supra the land to use. at so. Therefore we ability have the to do 378; Henderson, supra at 409. took must determine when this dedication express
We find no evidence of dedi did, find it and who made it. We place, if 10, 1949, cation. the Commis On October grandfa- Harvey’s Herman *6 County sioner’s Court of Kendall declared title, in dedicated predecessor and ther county Lindner Road to be a third class the road and Lindner Road. He built both Lindner, Hu road at the behest of Gus help neighbors. Holiday with the of School Harvey’s did bert’s brother and uncle. Gus only way that Holi- Lindner Road was the property. Appellees not own the do not Harvey him- day could be reached. School finding challenge the trial court’s that this public pre- that the was never self testified proper order was a void order because the using Road until the cluded from Lindner property owners of the were not served. July, Herman gates were locked in 1982. Dudenhaffer, Cooke v. 196 S.W. Lindner, Below, Herman grandson also a of 1917, no Worth Lindner Road public the had used testified — Fort writ). Harvey testified that he never knew cousin, Lindner, Percy a testi- since 1920. attempted uncle had to dedicate the Lindner Road since public fied the had used county attorney until the demanded rqad 1917. reopen gates August,
he its locked in ample and uncontradicted In addition to use, dedication, there is also evi- express public the of
Unlike evidence Herman Be- public of maintenance. theory implied of dedication is based on the dence County crews that Kendall equitable estoppel. doctrine A land low testified of Percy since 1913. estopped revoking an im maintained the road owner is from County maintained the plied using dedicated Lindner testified dedication or from the However, Harvey tes- any way origi in the road since land which contradicts having the to Moody, was averse purpose nal for the dedication. tified Hubert road, that after supra 378; but Dinwiddie v. American county maintain at county permis- Trading Corp., 373 Hubert’s death gave he and Production Lind- through in title to dedicate predecessors to the road in 1949 their sion maintain sup- findings of fact are ner Road. The his Uncle Gus. turn, evidence, by they, and ported Lindner find the shows that We find there judgment. Since we open public by the Road was thrown to use evidence, fac- legally is sufficient both and owner, Herman and his successors implied tually, of all the elements of of public in interest use. The cases continued of dedication reflected differ whether such an act without fact, points error one we overrule formality other is sufficient to establish through eight judgment. and affirm the to the fact of a dedication Com TIJERINA, Justice, dissenting. 273, Gragg, 161 Tex. pare O’Connor (such 878, suffi an act respectfully I dissent. cient) County, with Lee v. Uvalde declaratory from appeal This is an a 1981, (Tex.Civ.App. Tyler — Road,” judgment declaring that “Lindner (act sufficient). writ) Because there not situated on in Kendall appellants’ is also evidence of maintenance road. County, was a The roads, noted, we need not as we have court, jury, rendered trial a throwing open road determine whether predicated on the common doctrine law public use in itself to estab sufficient roadway in “implied The dedication.” implied It there lish dedication. is clear appellants’ predeces- was built given county was active consent help neighbors sor title with the acquiescence. rather mere than See passes through appellants’ property a dis- Lee, supra at 372. roadway tance of 1.3 miles. The intersects roads; requirement county namely,
The dedi- with other second Road purpose Road on the east and Herman cation is that a be served. Sons eventually connects with on the west and The evidence indicates that there are when Drive, road- Skyline a new dedicated heavy provides only rains Lindner Road way built to serve the same area. means ingress egress safe from the kept Lindner were area, gates across Road although there is another dedicated four until the summer of closed but not locked Drive) (Skyline which can be appel- upon 1982when the issue was raised safely good. used weather is locking gates. roadway has lant requirement The third for implied dedica- per- by the been maintained capable person making tion is an On appellants. mission October offer must an make offer dedicate. The of Kendall the Commissioners’ Court family Lindner allowed the to use pub- County declared Road unrestrictedly for at least 50 *7 road; however, trial court county lic the (and more) probably August until to be and of no the “Order” void declared county maintained road at the be- the action taken was force and effect since hest of at least from 1949 to the appellants. notice to present. eight points of error Appellants’ first requirement implied The fourth dedi- findings' of of challenge the correctness acceptance cation is that there be an Specifically and conclusions of law. fact impliedly dedicate. The inhabit- offer to asked to determine whether we were County through of their use ants finding an supports the of record evidence through maintenance county and the its as a of Lindner Road implied dedication clearly consider have evinced a desire to of a public road. The essential elements county’s county road. The Lindner Road a (1) a implied law dedication are: common also a reopen to Road is demand dedicate; (2) public competent to person acceptance. manifestation of dedica- purpose that will be served dedication; Ruth, tion; (3) Mark an or tender of Harvey, Steven and offer denying acceptance an of the offer or estopped from the intention and are 618 Trading by implied
tender. Dinwiddie v. American ers and not dedication. The 867, Corp., and 373 Production S.W.2d Skyline record evidence does reflect that 1963, writ). (Tex.Civ.App. Road, 869 Paso no recently a more built dedicated — El Scanlan, City v. 120 Tex. Houston general road serves the area. 264, 718, (1931), Supreme Skyline witnesses stated that Road was question, saying: Court addressed this during only hazardous bad weather and on ..., those occasions was Lindner It principal, upon “The vital Road used. which rests, clearly established that travel on the doctrine of dedication is the inten- question to was limited to area tion the owner dedicate. This persuaded by landowners. We are not may implied intention from the own- acts, fact that the maintained the road coupled er’s with the intention with appellants’ with consent since such evi- which he acts. But the intention to appel- dence is not to sufficient show inferable, by dedicate must be shown or evidence, lants’ consent amounted to an intent the owner’s sufficient from dedicate the road to the Lee v. [Emphasis See acts.” [Citations added.] County, supra at 372. I am un- Uvalde omitted.] proof to find in acts able this record Implied upon equi dedication is founded appellants’ part or omissions on estoppel table based on the owner’s action tend to an to dedicate would show intention or inaction. Trad Dinwiddie American Appellants’ the road to use. testi- ing Corp., supra at and Production mony gave permis- that he a license or constituting The establishment of facts sion to the area landowner use conjecture dedication left to and cannot be As in road was unrebutted. O’Connor v. in estop- asserted dedication rests 878, 161 Tex. Gragg, pel, the clearly evidence should and satis (1960), there is no evidence to show that factorily necessary establish the facts. See public generally customarily used County, Lee v. Uvalde 616 S.W.2d the road. 1981, writ); (Tex.Civ.App Tyler Hen — County, v. Frio 362 S.W.2d derson implied dedi- The common law doctrine Antonio writ cation has been abolished TEX.REV. — San n.r.e.). (Vernon ref’d Maintenance of the road Supp. art. 6812h CIV.STAT.ANN. county, 1984). with the owner’s consent can The suit was filed after effec- unequivocal not be considered as clear and retroactivity tive date of article 6812h and part estop them my acts on owner’s the statute is not issue view of denying from their intention to dedicate the ruling that there never was an dedi- question. County, subject roadway. My Lee v. Uvalde conclu- cation of supra factually at 372. is that the evidence is sion legally insufficient the trial undisputed It is that the road in Therefore, judgment. findings and court’s appellants’ property. pub- is situated on A reverse the and the I would lic school named the School was cause rendered. many built on the and existed for appellants’ consent. The school land and school was later closed appellants. The evidence
reverted back to *8 of the
presented by appellee restricted dedication was
claim testimony past commis-
to the neighboring landowners testi-
sioners and The record
fying conclusions. to factual any designation of
reflects that of the road was virtue
Road as a commission-
1949 void order