Tyler Court of Appeals holds even though it was established more than 100 years ago and no street has been built, mere non-use of a dedicated road easement does not amount to abandonment.

The Jesus Christ Open Altar Church, et al. v. City of Hawkins, 12-17-00090-CV (Tex. App. – Tyler, December 21, 2017).

This is a property dispute case in which the 12th Court of Appeals affirmed the trial court’s declaratory judgment regarding the City’s control over it right-of-way.

The City filed a declaratory judgment action against the Church regarding whether a plat recorded in 1909 dedicated fee simple ownership or any easements for roads to the City as well as whether the City had abandoned the roadway. Apparently, the City executed an “abandonment” deed in 1994 and questions arose regarding the scope of the abandonment. After a hearing, the trial court defined the scope of the property at issue. It further held 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.  The Church, which was claiming ownership of the property, appealed.

Once a road is dedicated to public use, that road remains subject to that use unless it is abandoned.  The purpose of a public road, particularly one of local character, is to provide access to property abutting upon it, as well as a thoroughfare between distant points. To show common law abandonment, one must show intent to abandon and acts of relinquishment. The testimony showed that the named street (i.e. Ash Street) was not built on the land where the 1909 plat shows it to be. The City has not used its easement across the disputed tract of land and has no plans to use it. However, there is no evidence of an express intention to abandon the City’s easement. There is no evidence that it would be impossible or highly improbable to build a street on the disputed property or that the object of the easement wholly fails. Although it was established more than 100 years ago and no street has been built, mere nonuse of the easement does not amount to abandonment.  In early 1994, English Funeral Home, which at the time owned the Church property at issue, petitioned the City to abandon certain unused streets and alleys, referencing the original 1909 plat.  The City did expressly abandon certain streets under the request and referenced them by block number. The record includes deeds showing the chain of title of the Church property from 1993 until the Church’s 2015 purchase. Utilizing incorporation by reference, the Court determined the Churches assertion of the location of the easements and scope contradicts the deeds. The trial court’s determination that the Church property is south of the abandoned easement, and not included in it, is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Judgment affirmed in favor of the City.

If you would like to read this opinion click here. Panel consists of Justices Worthen, Hoyle, and Neeley.  Memorandum opinion by Justice Hoyle. The docket page with attorney information is found here.

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