ROY BEATY AND ROSALIE BEATY v. CHARLES MARSHALL AND GEORGIE HUNDL--Appeal from 343rd District Court of San Patricio County

NUMBER 13-01-176-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

ROY BEATY AND

ROSALIE BEATY, Appellants,

v.

CHARLES MARSHALL AND

GEORGIE HUNDL, Appellees.

On appeal from the 343rd District Court

of San Patricio County, Texas.

O P I N I O N

Before Justices Dorsey, Ya ez, and Rodriguez

Opinion by Justice Dorsey

This is a suit for declaratory judgment involving the dedication of an easement for a public roadway called Maverick Trail located in the Whispering Oaks subdivision in Aransas Pass. Maverick Trail ends in a cul-de-sac approximately ten feet shy of the southern boundary line of the subdivision. The Beatys, appellants, own property located south of that boundary. They contend that the only way to gain access to their property is by using Maverick Trail as a through street. They contend that the original plat of the subdivision shows that Maverick Trail was dedicated for public use as a through street. Hence, they filed suit seeking declaratory judgment declaring that Maverick Trail is a public through street.

Appellees, Charles Marshall and Georgie Hundl, own the two lots in which Maverick Trail ends as a cul-de-sac. They argue that Maverick Trail was not effectively dedicated as a through street because it has never been used as such. They countersued for declaratory judgment declaring that Maverick Trail is a cul-de-sac and not a through street.

Marshall and Hundl moved for summary judgment. The Beatys responded and filed a cross-motion. The trial court rendered judgment that the Beatys take nothing, assessed attorney=s fees in the amount of $4,500.00, costs of suit, and postjudgment interest against them, and declared that:

(1) Maverick Trial is not a through street;

(2) it ends in Marshall=s and Hundl=s lots;

(3) the southwest corner of Marshall=s lot is on an extension of the centerline of Maverick Trail;

(4) the southeast corner of Hundl=s lot is on an extension of the centerline of Maverick Trail;

(5) Maverick Trail does not extend to the southern boundary line of Whispering Oaks Subdivision; and

(6) neither party nor the public has access to Maverick Trail from the northern boundary line of the Beaty's lot.

The subdivision plat, filed in 1974 by the then-owners, shows Maverick Trail both as a cul-de-sac and a through street. A note on the plat, which refers to the portions of the cul-de-sac that would not be used if the street were extended into a through street, states:

Note: This area reverted to lots when street is extended.

We first test Marshall and Hundl=s summary judgment evidence to determine whether they met their burden to establish a right to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). In reviewing a trial court=s grant of summary judgment, this Court applies well-established standards. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management, 690 S.W.2d 546, 548 49 (Tex.1985). To prevail on a motion for summary judgment, the movant must conclusively establish the absence of any genuine question of material fact and entitlement to judgment as a matter of law. Nixon, 690 S.W.2d at 548B49. A movant must either prove all essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986), or negate at least one essential element of the non movant=s cause of action. Randall=s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to judgment as a matter of law, the non movant has the burden to respond by presenting to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). We hold the trial court correctly granted judgment to Marshall and Hundl.

Marshall and Hundl attached the affidavit of Jerry Brundrett to their motion. Brundrett testified that he is a professional engineer, registered professional land surveyor, and is the County Surveyor for Aransas County. He performed a survey of Lot One, Block Three Whispering Oaks Subdivision in October 1999. He testified that according to the original map and plat of the subdivision, Maverick Trail ends ten feet from the southern boundary line of the subdivision. It does not reach the southern boundary and has never been extended into a through street. The summary judgment evidence also includes the affidavit of Marshall, who stated that Maverick Trail has never been used as a through street. We hold that this evidence is sufficient to show that Maverick Trail has not been used as a through street, and thus, any dedication of it as such was incomplete because it was not accepted.

We now turn to the Beatys= evidence to determine whether they defeated the movants= right to judgment by raising a genuine issue of material fact. See Clear Creek Basin Auth., 589 S.W.2d at 678. The Beatys contend that the unambiguous terms of the original plat of Whispering Oaks Subdivision establish, as a matter of law, that Maverick Trail was dedicated for public use as a through street by the original owners at the time the subdivision was platted. We disagree. Rather, we hold that the note on the plat map is insufficient to manifest the clear and unequivocal intent on the part of the landowner to dedicate for public use the additional ten feet of Maverick Trail necessary to extend the cul-de-sac into a through street.

Land may be dedicated for public use by an express dedication or by implication. Owens v. Hockett, 251 S.W.2d 957, 958 (Tex. 1952). AIn both instances, there must be an appropriation of land by the owner to public uses, in one case by express manifestation of such purpose and in the other, by some act or course of conduct from which the law will imply such an intent.@ Jezek v. City of Midland, 605 S.W.2d 544, 548B49 (Tex. 1980). A dedication of private property to a public use must be established by a declaration or act which shows a Aclear and unequivocal intention on the part of the owner to presently set aside and appropriate a certain part of his land for use by the public.@ Aransas County v. Reif, 532 S.W.2d 131, 134 (Tex. App.CCorpus Christi 1975, writ ref=d n.r.e.). While an express dedication may be made by a declaration in a plat that certain land is left open for public benefit, a mere agreement to dedicate on demand does not constitute a dedication. 26 CJS, Dedication ' 15 (2001). We find that the language on the 1974 plat map falls short of being such a clear and unequivocal intention to presently set aside and appropriate the land for Maverick Trail to be used as a public through street. Thus, we treat the purported dedication as an implied dedication rather than an express dedication.

In order to prevail on the theory of implied dedication, the Beatys were required to prove not only a clear and unequivocal intention to dedicate the property for public use, but also an acceptance of the dedication. Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984) (elements required to show implied dedication are: (1) the acts of the landowner induced the belief that the landowner intended to dedicate the road to public use; (2) the landowner was competent to do so; (3) the public relied on these acts and will be served by the dedication; and (4) there was an offer and acceptance of the dedication). Where the plat map contains no express dedicatory language on its face that the streets are to be devoted to public use, a person who claims that a street shown thereon has been dedicated to use by the public must show some act by the owner of the land that he clearly intended to so dedicate the land in question, and that there has been an acceptance thereof by the public, or by the local authorities. See Accord Reif, 532 S.W.2d at 134-135. We hold the Beatys have failed to raise a fact issue with regard to acceptance. AThe recording of a map or plat which shows streets or roadways thereon, without more, does not constitute a dedication, as a matter of law, of such streets as public roadways.@ Id. at 134. Thus, even taking all the Beatys' summary judgment evidence as true, they have not established a right to judgment on grounds that the plat shows the dedication of a public easement because the language on the platCparticularly when it is ambiguous, as it is hereCcannot establish as a matter of law the dedication of an easement for public use when the street has not been used by the public in a manner consistent with the alleged dedication. As recently explained by the Tyler Court of Appeals:

Recording a map or plat showing streets or roadways does not, standing alone, constitute a dedication as a matter of law. Dedication is a mere offer and the filing does not constitute an acceptance of the dedication. . . . [O]ne method of acceptance is through use by the public or local authorities. . . . A short period of use generally is sufficient, as long as the use continues for such a period that it may be inferred that the public desires to accept in perpetuity the offer of use.

Miller v. Elliott, No. 12-01-00370-CV, 2002 WL 1698263, at *4 (Tex. App.CTyler October 7, 2002, pet. filed) (internal citations omitted). Applying that analysis, there was no use or other evidence of acceptance of dedication of Maverick Trail for use as a through street.

On the contrary, Hundl and Marshall offered evidence showing that Maverick Trail was originally dedicated as a cul-de-sac and was never extended into a through street. The Beatys offered no controverting evidence on this point. Thus, we hold that Hundl and Marshall established their right to judgment as a matter of law by offering uncontroverted summary judgment evidence showing that the land in question was never effectively dedicated for a public roadway. We affirm the judgment of the trial court.

The Beatys cite to Town of Palm Valley v. Johnson, 17 S.W.3d 281, 287B88 (Tex. App.CCorpus Christi 2000, pet. denied), for the proposition that any condition imposed on a dedication of property is void. We do not read Palm Valley so broadly. Palm Valley involved a street, Lemon Drive, that clearly was dedicated as a through street in the subdivision plat. Id. at 283B34. The plat map showed that the street extended to the southern boundary of the subdivision. Id. at 283. The street was paved except for the four foot section leading to the southern boundary. Id. Johnson opened a subdivision beyond the southern boundary of the subdivision in which Lemon Drive was located, and the Town of Palm Valley sought to close that four foot section of Lemon Drive which had never been paved. Id. at 281. The Town of Palm Valley argued that the fact that the original subdivision plat included language in the dedication of the streets and roadways indicating that they were dedicated as public roadways Aso long as the same shall be used and maintained as such@ meant that the portion of Lemon Drive that had not been used and maintained as a public road to revertCthat is, it Alost@ its dedicated status. Id. at 283. This Court stated:

Again, Palm Valley cites us to no case law in support of its position and we have found none. A>Dedication= is the act of appropriating private land to the public for any general or public use. Once dedicated, the owner of the land reserves no rights that are incompatible with the full enjoyment of the public.@ Where a condition in a dedication is void as against public policy or as inconsistent with the grant, the dedication is effective but the condition is inoperative. Whether a dedicated use is restricted or unrestricted is determined by the intention of the dedicator at the time the dedication was made. In the present case, we conclude it is unlikely that the original dedicator intended to create a dedication in which a four foot strip of land would revert. Even if such an intent did exist, any such conditional limitation on the dedication is inconsistent with the grant and is therefore inoperative. We hold the trial court did not abuse its discretion in concluding that there was no failure of any conditional limitation in the original dedication.

Town of Palm Valley, 17 S.W.3d at 287B88 (internal citations omitted).

The Beatys argue that because the purported grant of Maverick Trail as a through street was conditioned upon it being extended, under authority of the Palm Valley case, the conditional aspect of the dedication must be stricken and the entire dedication must be given effectCthat is, we must treat the dedication as both a dedication of the cul-de-sac and the through street. We disagree. The Court in Palm Valley noted that it was unlikely that the original dedicator of Lemon Drive intended to create a dedication of a public street in which a four foot strip of land would revert. We agree with that reasoning. However, in this case, the plat seems to clearly intend that Maverick Trail would operate as a cul-de-sac street at the time of its dedication and was not going to be extended until some time in the future. Thus, it seems likely in this case that the dedicator intended to do what he did: make a present dedication of Maverick Trail as a cul-de-sac and a potential future dedication of it as a through street. However, because of the lack of acceptance of Maverick Trail as a through street, that dedication ultimately failed. Moreover, the Court in Palm Valley noted that even if the original dedicator of Lemon Drive intended that the dedication be limited to only portions of the street that were actually used and maintained as a public street, Aany such conditional limitation on the dedication is inconsistent with the grant and is therefore inoperative.@ Id. at 287. In this case, Maverick Trail was originally dedicated as a cul-de-sac. Accordingly, maintaining it as a cul-de-sac and not a through street is not inconsistent with the purpose of the original dedication.

Moreover, the case relied upon by this Court in Palm Valley as authority for the proposition that a condition in a dedication that is inconsistent with the purposes of the original dedication is void involved a situation where the dedicator of public roads retained the right to erect and maintain ornamental stone structures within the roadway easements that were later found to be a public nuisance. City of Fort Worth v. Ryan Props., Inc., 284 S.W.2d 211, 212 (Tex. Civ. App.CFort Worth 1955, no writ). In invalidating the condition on the dedication, the Fort Worth Court reasoned:

The right of the public to the use of the street for the purpose of travel extends to the portion set apart and used for sidewalks, as well as to the way for travel, and in short to the entire width of the street upon which the land of the lot owner abuts. This use, of course, includes parkways between the traveled portion of the street and the lot lines.

If it was the intent of the dedicator to dedicate to public use an area 95 feet in width from the intersection of College to the intersection of Eighth Avenue, then the attempted reservation of the right to erect stone columns within the boundaries of said dedicated area was inconsistent with the rights of the City to control the streets and to protect the safety, health and convenience of the public.

Ryan Props., Inc. 284 S.W.2d at 213.

While this principle is eminently reasonable when applied to a condition in a dedication that interferes with the use of a roadway, as such, that principle should not be extended to encompass the case at hand. The conditional nature of the dedication of Maverick Trail as a through street is not the same as the condition in Ryan Properties. The legal principle at issue is that A[a] condition in a dedication which limits the future freedom of action of the authorities to devote roadways to the wants and convenience of the public is void as against public policy or as inconsistent with the grant.@ Harlingen Irrigation Dist. Cameron County No. 1 v. Caprock Communications Corp., 49 S.W.3d 520, 532 (Tex. App.CCorpus Christi 2001, pet. denied). This principle is not violated by allowing the conditional nature of the Maverick Trail dedication to stand. In fact, if this principle were applied to the Maverick Trail dedication, it would more likely render the dedication as a through street invalid, rather than the dedication as a cul-de-sac.

All of the Beatys= remaining arguments also are based upon the premise that Maverick Trail was effectively dedicated for use as a through street by the 1974 plat. Since we disagree with this premise, we overrule all other points raised by their briefing in holding that Maverick Trail was never effectively dedicated as a through street because such dedication was not an express dedication, and further, it was never accepted.[1]

Finally, while not ultimately germane to the outcome of this appeal, the trial court included an additional finding in its summary judgment that bears explanation. The judgment contains a declaration that: A[T]he purported dedications by the Beatys, dated March 14 and April 1, 2000, are void, of no effect, and have been rejected and rescinded by the San Patricio County Commissioners= Court.@ This finding relates to a series of arguments made by the parties about acts taken by the Beatys where they attempted to Adedicate@ the extension of Maverick Trail by filing such dedication with the San Patricio County Commissioner=s Court.

Marshall and Hundt argued that the Beatys do not own a sufficient property interest to effect such a dedication. They attached to their motion for summary judgment the affidavit of Gordon Porter, County Commissioner for Precinct 4, San Patricio County. Porter testified that Whispering Oaks Subdivision is in his precinct. He testified that the Beatys made representations to the Commissioner=s Court which caused it to accept a purported easement dedication from them. They purported to dedicate an easement to extend Maverick Trail through their property. However, Porter testified that the Commissioner=s Court subsequently learned that the Beatys did not have the property interests they purported to have, and thus, they were unable to make the dedication of an easement extending Maverick Trail. Specifically, the Beatys represented to the Commissioners Court that Maverick Trail extended to the northern boundary of their property when, in fact, that was not the case. Not only did the road end ten feet short of the property line representing the southern boundary to the subdivision, but the Beatys did not even own all of the property upon which an extension of Maverick Trail would have to run. Finally, Porter averred that the Commissioner's Court rescinded the action accepting the Beatys= easement. Attached to Porter=s affidavit were two copies of the formal actions taken by the Commissioner=s Court accepting and then rescinding its acceptance of the Beatys= purported easement dedication.

The Beatys did not challenge this finding. Accordingly, we affirm.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 5th day of December, 2002.

[1]In their briefing to this Court, the Beatys make an argument that the easement must be granted by virtue of necessity. Because they did not raise this argument in their response to summary judgment at the trial court level, and furthermore, did not offer any evidence on this issue, we overrule this issue as well. See Clear Creek Basin, 589 S.W.2d 671, 678.