Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 402ND JUDICIAL DISTRICT COURT WOOD COUNTY, TEXAS
CONSISTED OF WORTHEN, C.J., HOYLE, J., AND NEELEY, J.
Jesus Christ Open Altar Church, LLC appeals from a
declaratory judgment in which the trial court determined that
the City of Hawkins, Texas holds an easement over Church
owned property. In two issues, the Church asserts that the
City abandoned its interest in the property. We affirm.
City filed a declaratory judgment action asking the court to
determine if a 1909 Texas & Pacific Railway Company plat
of the City conveyed fee simple title to the City of land to
be used for streets and alleys, or if it reserved easements
to be used for streets and alleys. It also asked the court to
declare what portion of proposed Ash Street, as it appears on
the 1909 plat, was conveyed by the City in an abandonment
warranty deed dated November 4, 1994. The City contends that
it did not abandon its interest in a portion of proposed Ash
Street that has never been used as a street and is now
claimed by the Church.
hearing, the trial court determined that the current
Blackbourn Street in the City is the same as "Old U.S.
Highway 80 as far as the dedicated but undeveloped portion of
Ash St. at issue is concerned; and that the portion of
undeveloped Ash St. lying south of Old U.S. Highway 80
(currently Blackbourn St.) is the property at issue in this
cause." The court further determined that the 1909 plat
conveyed easements in and to the streets and alleys of the
City, and the City holds an easement over the property at
issue. Also, the court determined that the City has not
conveyed or abandoned its easement on the property at issue.
appeal, the Church alleges that the portion of the judgment
holding that the City has a perpetual easement over the
Church's property should be reversed. Alternatively, the
Church argues that the case should be remanded for further
proceedings to determine with certainty the southern boundary
of the City's 1994 abandonment.
Law Abandonment of Easement
first issue, the Church asserts that the trial court erred in
determining that the City retains an easement on Church
property. It contends that the City abandoned its easement as
shown by the facts that the City has never used the easement,
has no plans to use the easement, and the City constructed
Ash Street at a different location.
attacking the legal sufficiency of an adverse finding on an
issue on which it had the burden of proof must demonstrate
that the evidence conclusively establishes all vital facts in
support of the issue. Dow Chem. Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001) (per curiam). In conducting a
legal sufficiency review, we consider the evidence in the
light most favorable to the challenged finding and indulge
every reasonable inference that supports it. Univ. Gen.
Hosp., L.P. v. Prexus Health Consultants, LLC, 403
S.W.3d 547, 550 (Tex. App.-Houston [14th Dist.] 2013, no
pet.). The evidence is legally sufficient if it would enable
reasonable and fair-minded people to reach the verdict under
review. City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). We credit favorable evidence if reasonable
jurors could, and disregard contrary evidence unless
reasonable jurors could not. Id. The trier of fact
is the sole judge of the witnesses' credibility and the
weight to afford their testimony. Id. at 819.
road is dedicated to public use, that road remains subject to
that use unless it is abandoned. Lindner v. Hill,
673 S.W.2d 611, 616 (Tex. App.-San Antonio 1984),
aff'd, 691 S.W.2d 590 (Tex. 1985); see also
Adams v. Rowles, 228 S.W.2d 849, 851 (Tex. 1950) (held
that the sale of lots by reference to a recorded plat
constitutes, as between the grantor and grantee, a dedication
of the streets and alleys designated in the plat, though not
yet open, and implies that the streets shall be forever open
to the use of the public). The purpose of a public road,
particularly one of local character, is to ...