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The Jesus Christ Open Altar Church, LLC v. City of Hawkins

Court of Appeals of Texas, Twelfth District, Tyler

December 21, 2017

THE JESUS CHRIST OPEN ALTAR CHURCH, LLC, APPELLANT
v.
CITY OF HAWKINS, TEXAS, APPELLEE

         APPEAL FROM THE 402ND JUDICIAL DISTRICT COURT WOOD COUNTY, TEXAS (Tr.Ct.No. 2015-700)

          PANEL CONSISTED OF WORTHEN, C.J., HOYLE, J., AND NEELEY, J.

          MEMORANDUM OPINION

          BRIAN HOYLE JUSTICE

         The 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.

         Background

         The 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.[1] 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.

         After a 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.

         On 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.

         Common Law Abandonment of Easement

         In its 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.

         Standard of Review

         A party 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.

          Applicable Law

         Once a 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 ...


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