Oswald v. Grenet

Lipscomb, J. The controversy in this case is, whether a [122] certain piece or lot of land, bounded by Bonham, Nacogdoches and Crockett Streets, in a plat of what is called Giddings’ addition to the city of San Antonio, which map is recorded in the office of the Probate Court of the county of Bexar, is a common, dedicated to the public use or not. It appears from the plat of the said lots, laid off by Giddings, the proprietor, that the piece of ground is of a triangular form, bounded as above stated, and the lots in the said plat are all numbered and delineated thereon, but the ground described above is not numbered or specially designated in the map. The deeds to purchasers of the lots outside of, and on, the the streets so bounding the ground claimed as a common, are described by their numbers, the streets on which they front, the number of feet front and back, with a reference to the plat or map of Giddings’ property, recorded as aforesaid. Not one of them call for a front on the vacant piece or parcel of ground. The lot, or lots, of the plaintiff call for a front on the street, without any reference to the spot of ground, sought to be established as a public common; nor is there any evidence that it had been used as a common by the people, or claimed as such by the persons owning lots in its vicinity. It was in evidence, that appellee’s vendor, whilst owning the two lots now owned by his vendee, the plaintiff in the Court below, appellee in this Court, offered to purchase the vacant space as it is called, but his offer was not accepted by Giddings. The plat or map was recorded on the 16th of February, 1849, and the deed for the lots owned by the plaintiff, which he alleges are made less valuable by the erection of a house on the vacant lot, by the defendant, was made by Giddings on the first day -of March, 1849. The evidence of the Surveyor shows that he found stakes set but covered with the sand, around this spot, at its different corners, and that they leave a space between (around) this ground claimed by the appellant, of about the width of a street. These are the material facts, appearing from the transcript of the record before us. [123] Among other charges made by the Court below, and here assigned for error, is the following : “ If a person, laying off a “ town or body of lots, for sale, recite in his deeds to purchasers “ of lots that he sells said lot or lots by reference to a map or “ plat of the lots, thus laid off, and so sold, and if such map or “ plat of survey have a vacant space delineated thereon, and “ not numbered, as the surrounding or other lots on such map “ are numbered, nor having anything connected with its de- “ scription on the map, to show that it was intended to be a “ lot, and not a space for the public use or benefit, then such “ space or square may, under all the circumstances, be consid- “ ered as a spot dedicated to the public; and any person, pur- “ chasing with reference to such dedication, can maintain a “ suit of this kind.” The question of what would amount to a dedication was very thoroughly examined by us in the case of Blair v. Odin, 3 Tex. R. 288 ; and after examining all the leading cases decided in the United States, we arrived at the following conclusion, that to sustain an action for the property didicated, the plaintiff must show a legal title ; or he must show the possession of the use and a deprivation thereof; and a suit brought to abate a nuisance by erecting a building thereon or obstructing the use, must be governed by the same rule of law. The case of the city of Cincinnati v. White, 6 Peters, 431, was that of a dedication of a piece of ground between Front Street and the river to public use. The city showed no title in fee, but it had been long used as a common thoroughfare, on which thousands daily passed and repassed, and costly buildings were erected adjacent to it. The city sustained the dedication, on the ground mainly of possession of the use. In the case under consideration, there was no evidence of the ground haring been used-as a common, and nothing showing for what it was designed. And the fact that the deeds to the adjacent lots not referring to it as a common, repudiates the supposition that it was so intended ; and if permitted to hazard a conjee [124] ture on the subject, we might as well suppose it was designed for a church building or schoolhouse, as that it was designed for a common. Had the lots adjacent to it been sold by deed referring to it as a common, or had it been long used as such, without the assertion a private right by the owner of the lots so marked and recorded, it might have been regarded as a common; because, in the case first supposed, there would be a recognition of it as such by deed, and, in the second, it would be presumed that it had been intended to be a dedication. But the circumstances detailed by the Judge in his charge, cannot be regarded as sufficient evidence of an appropriation to public use, constituting it a dedication. The charge of the Court, as to the evidence sufficient to constitute a dedication, was erroneous ; and the judgment is reversed and cause remanded. Reversed and remanded.