The Corporation of Seguin v. John Ireland, 58 Tex. 183

Gould, Chief Justice. As the owner of lots in the town of Seguin abutting on a public square alleged to have been “ dedicated as an open public ground,” John Ireland brought this suit, complaining that the town had without authority erected a market house and calaboose on this square, creating thereby a public nuisance and depreciating the value of his lots. He sought to have the buildings removed, and, upon the finding of the jury on certain special issues submitted to them, the court proceeded to adjudge that the buildings be removed.

The town appeals, and the first question presented is as to the plaintiff’s right to maintain a suit to abate a public nuisance. We deem it unnecessary to discuss the principles controlling this question, being satisfied that the previous decisions in this state recognize the right of the owner of a lot abutting on a public square to maintain such a suit, and that this line of decision is in accord with the weight of authority elsewhere. Lamar Co. v. Clements, 49 Tex., 348; Williams v. Davidson, 43 Tex., 30; Shepherd v. Barrett, 52 Tex., 640; Harrison v.

Boring, 44 Tex., 256; 2 Dillon on Municipal Corp., sec. 661 (522). Mr. Dillon says: “ Individual owners of lots adjacent to a public square, the value of which is affected by the dedication, have such rights and interests that they may maintain a bill in equity to enforce the trust, or to restrain the appropriation of the public square by the original proprietors, or by others, to their private use, or to any use inconsistent with the purpose for which it was dedicated.” Sec. 661, sivpra, and authorities there cited. See also Langley v. Gallipolis, 2 Ohio St., 107.

But there is another ground on which we think the demurrer to the petition should have been sustained, viz., the failure to state facts showing that the town authorities were not authorized to erect a market house on this square. Except as implied from the allegation that it ivas dedicated as an open public ground, there are no facts stated showing that the erection of a market house was inconsistent with the purposes to which the square was dedicated.

The insufficiency of the petition in this respect was followed by a corresponding insufficiency of the evidence to support the findings of the jury on the following issues: “ 3d. On the map and plat of said town of Seguin, is the place or square described shown to be open public ground? Ans. It is.” “ 4th. Did the original proprietors or property holders, in laying out said town, design said square or open space to be kept for an open market place? Ans. They did.” How the map of the town shows that this square is marked “ market.” There is nothing to indicate that it was to be open public ground.

Nor is there any evidence of the design of the original proprietors that it should be kept as an open market place. There was evidence that it had always been kept open until the building complained of was erected, except that some small houses had been erected by private persons for the purpose of selling beef. This evidence is insufficient to show a dedication as an open market place.

Surely the dedication of the square to market purposes would be satisfied, if, in the infancy of the town, it were kept open, and would be equally satisfied, if, when the growth of the town justified it, a public market house were erected thereon. Says Mr. Dillon: “ A public square or common in a town or city, where the dedication is general and without special limitation or-use, maybe inclosed, notwithstanding it has remained open many years, and be improved and ornamented for recreation and health.” Sec. 646 (509). In.the case of Langley v.

Gallipolis cited above, the court say: “The fact that this ground was left open and used as an uninclosed public common for many years, was not inconsistent with the terms of the dedication, and could not lay the foundation for any presumption against the right of the village to use the ground in any other manner deemed more advantageous or preferable within the terms of the dedication.” 2 Ohio St., 112.

We are very clear that the evidence was insufficient to support the findings of the jury. [Opinion delivered December 8, 1882.] The case was tried without any effort to discriminate between the right to erect a market house on this square and the right to erect there a calaboose or place for the confinement of disorderly persons, and we deem it unnecessary to inquire whether the use of a part of the market house, or of an addition to the market house, as a town prison was within the power of the town authorities or not.

The judgment directs the removal of the entire building, and because neither'the pleadings nor evidence are sufficient to authorize such relief, the judgment is reversed and the cause remanded. Reversed and remanded.