Opinion
No. 16501.
February 13, 1964. Rehearing Denied April 10, 1964.
Appeal from the District Court, Tarrant County, Fisher T. Denny, J.
DeVore, Ashworth McGahey, and Clyde R. Ashworth, Arlington, for appellants.
Cantey, Hanger, Gooch, Cravens Scarborough, and Jack C. Wessler, Fort Worth, for appellee.
Suit was brought by English against the Webb, Texas Volunteer Fire Department and its officers for an injunction enjoining the defendants from constructing a building on an area immediately west of plaintiff's Lot No. 5, which area plaintiff claimed to be a public street.
In a non-jury trial judgment was rendered for plaintiff.
The defendants appealed.
The recorded plats show an undesignated area (shown by evidence to be 220 by 210 feet) lying immediately west of Lot 5. Lot 4 is north of Lot 5 and Lot 6 is south of Lot 5. Lot 8 is west of Lot 6 and Lot 3 is west of Lot 4. Lot 3 is north of the undesignated area, and Lot 8 is south of the undesignated area. Between Lots 6 and 8 is shown a street bearing the name 'Payne'. Between Lots 4 and 3 is a street with the word 'street'. There is no line on the plat from Lot 8 to Lot 3. The width, however, between Lots 3 and 4 and Lots 8 and 6 is the same, i. e., 60 feet. On the west of the undesignated area are, from south to north, Lots Nos. 9, 10, 11 and 2. Lot 10 is west of Lot 8 and between the two lots appears a street designated 'Main'. Lot 2 is west of Lot 3 and between them appears a street with the word 'Street'. Lot 11 is immediately west of the undesignated area, and across that area from Lot 5. The defendants contend that since the plats do not show a line from the northeast corner of Lot 8 to the southeast corner of Lot 3, and no roadway has been paved or improved across the undesignated area west of Lot 5, Payne Street is not continuous but deadends both on the north and the south at the undesignated area.
The court made the following findings of fact:
"1. The Town of Webb, Texas, was platted and dedicated by Plat and Dedication dated in the year 1903, recorded in Volume 106, page 95, Plat Records, Tarrant County, Texas, and by Plat dated in 1909 and recorded in Volume 310, page 23, Plat Records, Tarrant County, Texas.
"2. B. E. English, plaintiff, is the owner of Lot or Block 5 in the Town of Webb, Tarrant County, Texas, as shown by such plats and dedications.
"3. Each of the plats and dedications referred to in paragraph 1, above, dedicated to the public a street being 60 feet wide, running in a northerly and southerly direction, called Payne Street, immediately West of and adjoining said Lot or Block 5 in the Town of Webb, Tarrant County, Texas.
"4. That portion of Payne Street immediately West of and adjoining Lot or Block 5 has not been abandoned or officially closed.
"5. When plaintiff, B. E. English, purchased Lot or Block 5 in the Town of Webb, he purchased same with reference to and in reliance upon the plat and dedication of the streets, including Payne Street, to the public.
"6. Defendant, Webb, Texas Volunteer Fire Department is an unincorporated association and the individual defendants are officers and members of such association.
"7. Prior to the commencement of this action the defendants began the erection of an obstruction in the nature of a building in Payne Street, being the street immediately West of and adjoining Lot or Block 5 in the Town of Webb, such building or obstruction being in that portion of Payne Street immediately West of such Lot or Block 5.
"8. That prior to the defendants beginning the construction of such building and obstruction, they were advised by plaintiff and were actually aware of plaintiff's contention that such obstruction would be in a street dedicated to the public and that plaintiff intended to protect his rights in having such street remain unobstructed. Plaintiff, as the owner of Lot or Block 5 in the Town of Webb would suffer damage should Payne Street immediately West of and adjoining such Lot or Block 5 be obstructed as sought by defendants."
We have studied the plats and dedications and all other evidence and find that the findings are supported by the record.
The court's conclusions of law were:
"1. An area 60 feet wide immediately West of and adjoining Lot or Block 5 in the Town of Webb, Tarrant County, Texas, as shown on the plats and dedications thereof recorded in Vol. 106, page 95, and Vol. 310, page 23, Plat Records, Tarrant County, Texas, is a street designated on said plats as Payne Street.
"2. Plaintiff, as the owner of Lot or Block 5, Town of Webb, Tarrant County, Texas, is entitled to have that portion of Payne Street immediately West of and adjoining Lot or Block 5 remain unobstructed.
"3. Defendants should be enjoined from in any way or manner obstructing that portion of Payne Street immediately West of and adjoining Lot or Block 5 in the Town of Webb, and should be required to remove from such street any obstructions heretofore placed therein by them."
The court correctly applied the law to the facts in rendering judgment for plaintiff.
The judgment is supported by Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849, and Shields v. Harris County, Tex.Civ.App., 248 S.W.2d 510.
All points of error are overruled.
Judgment affirmed.