City of Dallas v. Crow

326 S.W.2d 192, 1959 Tex. App. LEXIS 1972
CourtCourt of Appeals of Texas
DecidedApril 24, 1959
Docket15496
StatusPublished
Cited by7 cases

This text of 326 S.W.2d 192 (City of Dallas v. Crow) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Dallas v. Crow, 326 S.W.2d 192, 1959 Tex. App. LEXIS 1972 (Tex. Ct. App. 1959).

Opinion

DIXON, Chief Justice.

This is a suit for title and possession of a strip of land 5(7 by 10T which is now a part of Ocalla Street in the City of Dallas, Texas. At the time this dispute arose Ocal-la Street already extended to and beyond the strip in question. The street ran in a northwesterly direction to Garland Road, but its course towards Garland Road was broken for a distance of 101 feet by the land in controversy.

Appellees J. A. Crow and wife, Mary Crow claim by and through a warranty deed dated April 17, 1945 conveying a large tract of land from A. E. Diceman and Laura Diceman to J. A. Crow. It is appellees’ contention that the tract so conveyed includes the strip of land in controversy.

Appellant City of Dallas claims by and through a quitclaim deed dated January 14, 1958 from Bernard Whitten, Administrator of the Estate of A. E. Diceman, deceased; and claims also a specific or implied dedication by J. A. Crow of the property in question as a part of Ocalla Street.

Neither side pled title by limitation.

A short recital of antecedent events is deemed appropriate. On September 17, 1957 the City Council passed a resolution declaring the necessity of acquiring the land in question in order to extend Ocalla Street. The resolution found that “the owners or parties claiming an interest in the said property” were J. A. Crow and wife, Mary J. Crow. An offer of $1,262.-50 was made to them for the purchase of the property. Crow and wife refused the offer.

On or about November 6, 1957 the City instituted condemnation proceedings, commissioners were appointed, and a hearing set. However the hearing was postponed and has never been held. The condemnation proceedings are still pending.

Meantime the City concluded that J. A. Crow and wife, Mary J. Crow, did not own the property. Soon thereafter the City obtained the quitclaim deed to the land from the A. E. Diceman Estate, entered upon the property, tore down fences, and began its street improvement operations. The strip of land in controversy became part of a concrete paved street with curbs and gutters.

On February 27, 1958 appellees filed this suit. In an amended petition they prayed for title and possession of the property, for a permanent injunction to restrain the City from interfering with their possession, and for $100 damages for destruction of trees and fences by the City. After a trial without a jury, the court on May 9, 1958 entered a judgment granting all the relief prayed for by appellees.

Appellant City relies mainly on the testimony of C. W. Watts, a surveyor of thirty years experience, and at the time of the trial Senior Engineer in the Survey Division of the City’s Public Works Department. Watts did not personally survey the land, but depended on field notes prepared by other City employees under his supervision. He testified that the deed descrip *194 tion was ambiguous because it contained a number of erroneous calls for courses and distances; but that relying on courses and distances where possible, and established points and corners where possible, he found that the strip of land in dispute was not included in the deed of April 17, 1945 from Diceman to Crow.

Appellees rely mainly on the testimony of O. R. McElya, an engineer and surveyor of many years experience, who has lived in the community for a long time and has a personal knowledge of the various tracts of land in the neighborhood. He surveyed the property acquired by Crow from Dice-man by deed dated April 17, 1945. McElya testified that the description contained in the deed of April 17, 1945 was ambiguous in that several of the calls for course and direction were obviously wrong. He further testified that in such case a surveyor should be guided by objects found on the ground which might furnish the key to the grantor’s intention. In this instance he relied on the fence lines, as he knew they had existed for many years. Using these fence lines together with the calls set out in the deed description, he found that the land in dispute lay within the original tract conveyed by Diceman to Crow by deed dated April 17, 1945.

In its first point on appeal the City asserts that the judgment in favor of ap-pellees for title and possession is contrary to the uncontradicted evidence. In support of this point the City relies on the legal principle that where there is a conflict between a call for course and distance and a call to an established corner, line, point, or natural object, the latter call will prevail. See Willis, et ux. v. Dean, 149 Tex. 377, 233 S.W.2d 564; Dow v. American Liberty Oil Co., Tex.Civ.App., 83 S.W.2d 401; Kirby Lumber Co. v. Gibbs Bros. & Co., Tex.Com.App., 14 S.W.2d 1013. Based on that principle the City says that the un-contradicted testimony shows that the parcel of land in controversy does not lie within the tract deeded April 17, 1945 by Dice-man to Crow. Therefore, says the City, we should reverse the judgment of the trial court and render judgment for the City.

We do not disagree with the legal principle upon which appellant relies, but in our opinion that principle is not applicable here. It is certainly true that several of the calls for courses and distances contained in the deed description are plainly wrong. But the record evidence before us does npt establish the corners and lines named in the deed with such certainty as to enable us to render judgment for the City.

To illustrate what we mean we quote from the second and fourth calls in the deed: (2) “Thence in a Northeasterly direction 464 feet more or less to a point for corner said point being the most Southerly corner of a tract of land conveyed to C. S. Manning by A. E. Diceman and wife dated August 20th, 1946 * * *” (4) “Thence in a Northeasterly direction, paralled with the second call herein a distance of 160 feet more or less to a point in the S.W. line of Ocala Street;”

It is agreed by both surveyors that the call for 464 feet in a northeasterly direction is wrong, for it would end about 70 feet over into the Manning tract. But what of the point named: the most southerly corner of the Manning tract? Is it definitely established by uncontradicted evidence contrary to the court’s judgment? The answer is no.

Here are excerpts from the testimony of McElya:

“Q. All right, now, the next call says * * * said point being the most southerly corner of a tract of land, conveyed to C. S. Manning by A. E. Diceman and wife by deed dated August 20, 1936 * * * Did you find that point? * * * A. It wasn’t on the ground. * * *
“Q. As a surveyor shouldn’t you have found that point ? A. Well, you would if it is there, but if it is not there you can’t find it. * * *
*195 “Q. All right, now, Mr. McElya, why could you not find that point on the ground, the southerly corner of this Manning tract? A. Because it is not there, other than where a fence is.
“Q. Did you take the Manning tract and actually plat it in to see where it would be? A. No, sir.
“Q.

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Bluebook (online)
326 S.W.2d 192, 1959 Tex. App. LEXIS 1972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-dallas-v-crow-texapp-1959.