Crawford v. Thomas

229 S.W.2d 80, 1950 Tex. App. LEXIS 2018

• Court: Court of Appeals of Texas
• Decided: February 16, 1950
• Docket: 2877
• Status: Published

Opinions

LESTER, Chief Justice.

The appellees Lacys acquired certain blocks in the Dean Addition and filed a replatting thereof and created Hillcrest Annex Addition. Said new plat changed the lot lines, streets and residential character of some of said blocks. In August 1947, the appellants here filed suit in the 54th District Court, being No. 28348, against the Lacys alleging, among other things, that they were the owners of certain lots in Block 40 of the Dean Addition; that some of the lots front.on Pine Street and some are contiguous to 33rd Street; that in the plat of the Dean Addition, 33rd Street was open from Trice Avenue on the south to a point some 200 feet north of Pine Avenue and beyond the north line of Block 42, where it opened into what is known as the old Speegleville Road; that they purchased and acquired their lots in said Block 40 with reference to said lots and blocks and streets and alleys, and the location- and dimensions thereof 'and the advantage of such streets and alleys and locations, all as shown in the recorded plat of Dean’s Addition, and in reliance upon said restriction agreement of the defendants, have' placed on said property a dwelling house and other improvements for residential purposes at considerable cost and of very great value; that in violation of said agreement and contrary to said plat of said Dean Addition, the defendants have completely obliterated and disregarded the subdivision of said lots in Block 41 and the location and existence as an open street of said 33rd Street, by executing a new plat creating what is therein denominated as Hillcrest Annex Addition, causing said plat to be filed for record in the Deed Records of Mc-Lennan County, Texas; and that in said new plat the dimensions and locations of said lots in Block 41 are completely changed, and said 33rd Street as shown in said Dean’s Addition plat is wholly obliterated and converted into lots in said new Block J of said Addition, and being a part of Lots 7, 8, 9, 10, 11 and 22 in such new block. They further pleaded that the defendants, contrary to said Dean’s Addition plat and in breach of said restriction agreement, have conveyed the south end of Lots 5, 6, 7 and 8 of said Block 41 not for residential purposes as provided in said agreement, but to McLennan County for use as a road or highway, and subsequent to such deed McLennan County has opened up and is now devoting such area to public use as a broad highway, which greatly diminishes the value of their property; that the defendant is threatening to use said portion of 33rd Street included in said new addition for the creation of what is known as a community store center to be used for business and commercial purposes, and to that end is proceeding to close up said street and erect thereon such community stores or business structures, or offer said property for sale for said purpose; that if the lots and streets as shown in said Dean’s Addition plat are preserved the residences on plaintiffs’ lots will face residences that cannot exceed the restricted number in said Block 41 and a broad street to the west thereof open to the north beyond such lots; and that the closing up of said street will destroy or greatly diminish the value of plaintiffs’ property; and asked that the defendants be enjoined from doing any and all of the things complained of.

In September 1947, the appellants lie.re filed another suit in the 54th District Court, being No. 28417, against the Lacys, in which they sought an injunction against them: “1 (a) From using, conveying, selling or otherwise disposing of any interest in said Blocks 42 to 45, inclusive, except in accordance with the said plat of Dean’s Addition, and only for residential purposes, and from disregarding the lines of said lots and blocks as shown in said Dean’s Addition, and from constructing or maintaining any structure or improvement in disregard of the lines as shown in said plat, or creating any new lines or a new plat different from the lines as shown in said Dean’s Addition plat, and from using or permitting such lots to be used for any purpose other than for a residence; (b) from operating or constructing or in anywise building or maintaining any structure or any improvements of any kind or character, in said streets and alleys shown in said Dean’s Addition plat, except water, sewer and other utilities as are properly located in said alley easements.”

These two suits were consolidated and settled by agreements of the parties and an agreed judgment entered. ' One of the settlement agreements in part provides that the Lacys and Hillcrest will convey certain lots in Block J of the Hillcrest Annex Addition to Crawford, among them being Lot 12 and that part of Lot 11 in said block east of the continuation of the present east curb line of 33rd Street. Lot 12 and part of Lot 11 were formerly in Block 41 of the Dean Addition. Crawford agreed to construct a standard curb and gutter along said line to its intersection with the West line of Lot 11 and along the present north curb line 'of Pine Street. Lacys agreed to continue to curb and gutter from the west line of Lot 11 around to 33rd Street as now located. Other portions of the agreements and judgment material here will be disclosed a little later.

This suit was filed in the 74th District Court by Tillman R. Thomas, Sr., against W. F. Crawford, Hillcrest Realty Company, Walter G. Lacy, Jr., Roane M. Lacy, Lawrence C. Lacy, Trustees for themselves and Lucile Lacy Taylor. He sought to recover damages against Crawford for trespass upon Lot 10 and part of Lot 11 of the Hillcrest Annex Addition, which the said Thomas held under a lease from the Hillcrest Realty Company. Fie also sued the Lacys to ascertain the title to the property held by him under said Lease. The Lacys and Hillcrest Realty Company filed a cross-action against the said W. F. Crawford and the intervenors, Mrs. Winifred Crawford Morris and husband, suing in one count in trespass to try title to Lots 7, 8, 9, 10, 11 and 12 in Block J of the Hillcrest Annex Addition; and secondly, sought a construction of the compromise settlement agreements entered into between the Lacys and said Hillcrest Realty Company on one hand and the appellants on the other and the judgment entered in the 54th District Court in the consolidated Causes Nos. 28384 and 28417, and pleaded said judgment as res judicata and further pleaded that appellants were estopped to attack the validity of said judgment and agreements.

At the conclusion of the evidence the trial court decided there was no issue of fact to go to the jury; therefore he withdrew the cause from the jury and entered judgment construing the settlement agreements and judgment entered in the 54th District Court, as material to the issues here raised, as follows: The court found that the judgment and settlement agreements were binding, and that title to the portion of property embraced in the old Speegleville Road is in the Lacys free from all restrictions and encumbrances, and that said road is closed and the Lacys are free to erect improvements thereon, and that the title to the area embraced in old North 33rd Street between Blocks 41 and 42 of the original Dean Addition is in the Lacys, subject only to the restriction that as between the Lacys and the appellants no structure or improvement will be built on same and it will be kept open, but not as a»street to the public, and entered judgment accordingly. The court further found that Crawford was guilty of a trespass in entering upon the property embraced in the old North 33rd Street between Blocks 41 and 42 of the original Dean Addition and assessed nominal damages in favor of Thomas against Crawford in the sum of one dollar and costs.

In order to clarify the issues raised, the following plat, which we designate as No. 1, reflects the exact situation of the property here in question prior to the replatting by the Hilicrest Annex Addition. We find in appellant’s brief a plat, which is substantially correct, portraying the situation after the replatting and the effect of the judgment of the trial court, which we here reproduce and designate as No! 2:

Prior to the replatting the old Speegle-yille Road entered North 33rd Street from the west and at the north line of Block 42. Since the replatting 33rd Street as extended goes around Block 42 to the south and west and the portion of the old Speegleville Road north of Block 42 is closed and North 33rd Street as it formerly existed is closed at the north intersection between Blocks 41 and 42.

Appellant’s first point is as follows: “Under the judgment in suits Nos. 28348 and 28417, consolidated, and the settlement agreements, 33rd Street was preserved as a street and the defendant, W. F. Crawford, had a right to use it as a street, and in the absence of damage from negligence in such use, was not guilty of a trespass as a matter of law.”

As both parties contend here, and so contended in the trial court, that the settlement agreements and the judgment entered in the 54th District Court are clear and unambiguous, the question is, what did the parties actually agree to? In order to decide the question we must look to the settlement agreements and the judgment. In one of the settlement agreements we find incorporated therein the following:

“An agreed judgment will be entered in the pending suits dissolving the restraining order, confirming the replatting of the area embraced in the Hillcrest Annex Addition, quieting the title to the old Speegleville Road, and the old alley-way to the North of Block 41, the portion of North 33rd Street embraced in the Hillcrest Annex Addition and the portion of Pine Street between Blocks 42 and 43 of the original Dean Addition. * * *

“No building or structure will be built on the portion of old North 33rd Street between Blocks 41 and 42 of the original Dean Addition and said part of said 33rd Street will be kept open. * * *

“All agreements with reference to restrictions and uses of the respective properties herein described shall be between the parties. * * *

“The only restrictions on the use of the property shall be those set forth in this agreement which shall inure solely to the benefit of the parties hereto and their successors in title to Lots 1 to 8, of Block 40, and not to the public or any other persons or property owners.”

In the other settlement agreement it was provided that the appellees, being the owners of Lots 9, 10 and 11 in Block J of Hill-crest Annex Addition as per amended plat, covenanted and agreed with the appellants herein as the owners of Lots 1, 2, 3, 4, 5, 6, 7 and 8 in Block 40 of the Dean Addition, and their heirs and representatives and successors in title to said lots, that said Lots 9, 10 and 11 of said Block J will be owned, held and used by said owners thereof and their successors in title in accordance with the agreements therein contained. Paragraph No. 1 of said agreement provided: “No building or structure will be built on the portions of said lots that were formerly. part of North 33rd Street between Block 41 and 42 of the original Dean Plat and said portion thereof shall be kept open.”

Paragraph 3 provided: “This agreement is for the benefit of and shall inure only to the benefit of and may be released at any time in whole or in part by the said Winifred Crawford Morris and W. F. Crawford, or their successors in title to said Lots 1 to 8 in Block 40 of the Dean Addition.”

The judgment entered by the trial court provided: “It is ordered that plaintiffs Lucile Cooper Lacy and husband, Walter G. Lacy, and Walter G. Lacy, Jr., Roane M. Lacy, Lawrence C. Lacy as Trustees for themselves and Lucile C. Lacy Taylor, do have and recover of and from Winifred Crawford Morris and husband, James R. Morris, and W. F. Crawford, individually and as class representatives of all other property owners similarly situated judgment declaring and confirming the validity of the replatting of the area embraced in the Hillcrest Annex Addition and quieting their title to the area formerly a part of the old Speegleville Road and a portion of North 33rd Street now embraced in said Plillcrest Annex Addition and the alley, if any, on the North side of Block 41 as per the original plat of the Dean Addition, and the portion of Pine Street between Blocks 42 and 43 of said original plat of Dean Addition and declaring said streets and alleys closed and abandoned, and that the new plat of the Hillcrest Annex Addition is a valid and subsisting plat and subdivision.”

In respect to validating the replatting of the Hillcrest Annex Addition and quieting title to the property in the Lacys, said, judgment further provided: “It appearing to the Court that under the terms of this ■agreement the defendants (appellees here) ■.recover upon their cross-action herein judgment confirming the re-platting of the •■area embraced in the Hillcrest Annex Addition, quieting their title to the area that ■was formerly the old Speegleville Road and the portion of North 33rd Street embraced in Hillcrest Annex Addition.”

There can be no doubc that such instruments, by clear and specific terms, •confirmed the validity of the replatting of the area embraced in the Hillcrest Annex Addition in its entirety, and quieted title to the property in the Lacys; and by agreeing to the judgment which provided “and declaring said streets and- alleys closed and abandoned and that the new plat of the Hillcrest Annex Addition is a valid and subsisting plat and subdivision”, they evidenced the clear intention that old North 33rd Street should 'be closed as a street. What did the parties intend by using the clause “declaring said streets and alleys closed and abandoned” if they did not intend that said streets and alleys should be' closed as public thoroughfares? “Abandoned” is defined by Webster’s Dictionary as: “to relinquish or give up with the intent of never again resuming or claiming one’s .rights or interests in; to give up absolutely; to give over or surrender utterly.” Appellants contend that the provision of the contract that no building or structure will be built on the portion of old North 33rd Street between Blocks 41 and 42 of the original Dean Addition and that said part of old North 33rd Street will be kept open, means that it was to remain open as a street. It would be impossible for the area to be closed as a street and to remain open as a street at the same time. Why should such area be referred to as formerly part of North 33rd Street if it was to remain open as a street? It could not be closed and open in the same sense at the same time. For what purpose did they provide the wholly unnecessary provision that “no buildings or obstructions should be placed thereon” if it was intended that it should remain an open street? In every instance in which it is provided that the area should be kept open it is immediately preceded by the language that “no building or structure will be built on the same.” “Open” is defined in part by Webster’s New International Dictionary as: “(2) open or unobstructed space, as land without trees or obstruction.” One of the contentions of the appellants in 'the causes in the 54th District Court was that the appellees were threatening to use a portion of 33rd Street embraced in said new addition for the creation of what is known as a community store center, to be used for business and commercial purposes, and to that end were proceeding to close up said street and erect, thereon such community stores or business structures, and if permitted to do so it would greatly depreciate the value of their property. These suits were settled by agreements and judgment which was approved by all the parties. Said judgment vested and quieted title in the Lacys,,and further provided that “said streets and alleys closed and abandoned”, and confirmed the replatting of said addition. An express and specific provision in an instrument cannot be destroyed by implication. U. S. Fire & Insurance Co. of New York v. St. Louis & B. & M.R. Co., Tex.Civ.App., 41 S.W.2d 118; Joseph v. Bostick, Tex.Com.App., 276 S.W. 672.

We are of the opinion that the agreements and judgment entered clearly reveal that the parties were contracting with the intention of all the parties that old North 33rd Street should be closed, with the restriction that no building or obstruction be placed thereon, and that said area should remain an open space but not a public street. The area that was formerly old 33rd Street having been closed by the terms of the agreements and judgment and the title thereto quieted in the Lacys, and the appellee Thomas being a lessee of .said property from the Lacys, W. F. Crawford was guilty of a trespass when he with his contractor, over the objection of Thomas,' scarified and squeegeed a- portion of said area, and it was not-error upon the part of the trial' court in so holding and assessing nominal damages in the sum of one dollar and costs against him. McDaniel Bros. et al. v. Wilson et al., Tex.Civ.App., 70 S.W. 2d 618, writ ref.

Appellant’s second point is:. “The court erred in holding that the old Speegle-ville Road belonged to the- Lacys free of all restrictions”. The. appellants agreed that the area which was formerly the old Speegleville Road should belong to the Lacys free of all restrictions and the judgment in the 54th District Court quieted title to the same in the Lacys and declared the same to be unrestricted as to its use. Appellants say that there was no showing in the trial in the 54th District Court that the Commissioners Court of this county complied with Article 6705 of the Revised Statutes in reference to closing a road and opening a new one. We do not know what the evidence was before the 54th District Court at the time the judgment was entered and it is of no concern here. The 54th District Court is a court of general jurisdiction and its jurisdiction cannot be collaterally attacked in such a manner. The law presumes that the court had sufficient evidence to support its judgment in attacks of this nature. Endel v. Norris, 93 Tex. 540, 57 S.W. 25; Long v. Chapman et al., Tex.Civ.App., 151 S.W.2d 879; Mercer v. Rubey, Tex.Civ.App., 108 S.W.2d 677; Motor Mortgage Co. et al. v. Finger, Tex.Civ.App., 200 S.W.2d 228. Furthermore, the appellants are in no position to raise the question after agreeing that the title should be quieted in the Lacys, that the area should be closed and abandoned without restriction as to its use, and thereafter accepting the benefits accruing as a result of said agreement. Sigel v. Buccaneer Hotel Co., Tex.Civ.App., 40 S.W.2d 168, 169.

Appellants’ third proposition is: “The court erred in defining the point of proximity of structures on Lots 9, 10 and 11 in Hillcrest' Annex Addition (Block 42 Dean’s Addition) as the east line of the store building of the plaintiff”, and in support of this say that the line to which buildings in'Block 42 may be extended with reference to Pine-Street was most definitely fixed ill one of' the settlement agreements, and the judgment appealed from, by fixing the point- as-the east line of the store building now rented by plaintiff Thomas, will create confusion in that in the future who can say what store Thomas rented at the time of this suit; that in the settlement agreement, which was drawn with much care, the location of the limiting line was surveyed and’ fixed with precision and as a permanent landmark. We find that the parties agreed! that no building or structure will be built on portions of said lots that were formerly part of North 33rd Street between Blocks 41 and 42 of the Original Dean Plat and said portion thereof shall be kept open. We-find in paragraph 2 thereof the following: “No building or structure will be built on said lots nearer Pine Street than the east line of the building now in construction, said east line of said building being located, as follows: Beginning at the Southeast corner of Lot 11 of said Block J and in the North line of Pine Street as now located; thence in a Northerly direction along the East line of said Lot 11 50.9 feet; thence in a westerly direction and perpendicular to the East line of Lot 11 across said Lots 11 and part of 10 of said Block J 113.9 feet at the Southeast corner of said building now in construction; thence in a northeasterly direction along the East line of said building 25.3 feet to the Northeast corner thereof; thence leaving said building in art easterly direction and perpendicular to the East line of said Lot 11 and recrossing part of Lot 10 and Lot 11, 103.1 feet to the East line of said Lot 11; thence in a southerly direction along the East line of said Lot 11, 73.8 feet to the North line of Pine-Street as now located, and the point of beginning.”

In order to avoid any confusion from contingencies that might arise in the future, we are of the opinion that this part of the trial court’s judgment should be reformed so as to include the description set out above, as agreed to, and the same is so-ordered.

Appellants’ fourth proposition is: "The court erred in overruling plea in abatement of the defendant W. F. Crawford to cross-action of the defendants Lacy and Hillcrest Realty Company, because all persons affected by the construction of the settlement agreements and judgment entered in Causes Nos. 28348 and 28417 which was sought in said cross-action- were necessary parties, and it was affirmatively shown that W. H. Dickson and wife, Ann Dickson, held title to lots affected by such construction or interpretation.” Article 2524— 1, Sec. 11, Vernon’s Ann.Civil Stats., relating to declaratory judgments, provides that all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. The appel-lees Lacys sued by cross-action in two counts, first, in trespass to try title and secondly, for declaratory judgment. The record shows that subsequent to the settlement agreements and judgment the Dick-sons acquired the lots they now own from W. F. Crawford, and they are bound to the same extent that Crawford would be bound if he still owned said lots. The appellees suing in trespass to try title, the court had to construe the agreements and judgment in order to fix the rights of the parties to the property involved. The record doe's not show any other person was asserting ownership or claim to the' property except Crawford. There was no partition sought. It was not error of the trial court to try the case as to the parties before the court. If the Dicksons have some interest in the subject matter their rights have not been prejudiced as they were not parties to the litigation and therefore are not bound by the judgment. Heirs of Tevis v. Armstrong et al., 71 Tex. 59, 9 S.W. 134; Booty v. O’Connor, Tex.Civ.App., 13 S.W.2d 220.

The judgment of the trial court is hereby reformed as above provided, and in all •other respects the same is affirmed.