This suit is a sequel to one brought by the County of Dallas and the Industrial Properties Corporation against Royal C. Miller, Emma Miller Exline and her husband, A. L. Exline, claiming an easement in, and to enjoin defendants from obstructing or using for any purpose other than as a highway, a strip of land, 200 ft. in width, situated without the limits of the City of Dallas, being part of an extension of Cadiz *Page 829 Street from the underpass built by the City at its limits, extending to the Cadiz Viaduct (spanning the new floodway), built by the County; said 200 ft. strip having previously been dedicated to the public by the defendants for use as an extension of Cadiz Street. The trial resulted in a judgment recognizing that Miller and the Exlines owned title to the land in fee, but that same was burdened with an easement, in favor of the County of Dallas and Industrial Properties Corporation, for use as a highway, hence perpetually enjoined the owners from obstructing or using any part of the dedicated strip in any manner other than for highway purposes. On appeal, this court affirmed the judgment of the trial court (see Miller v. Dallas County, 71 S.W.2d 377), and writ of error was refused by the Supreme Court.
The present suit is by Royal C. Miller, Emma Miller Exline, joined by her husband A. L. Exline, against the County of Dallas, Industrial Properties Corporation, the Sportatorium, Inc., and W. T. Cox, to recover possession of all that portion of the 200 ft. strip theretofore dedicated by plaintiffs as an extension of Cadiz Street, not actually used by defendants for highway purposes; alleging that part of the strip had been abandoned since the finality of the judgment in the first suit, seeking recovery of the portion abandoned.
At the conclusion of the evidence, the case was submitted to a jury on special issues, resulting in a verdict in favor of all defendants except Dallas County, finding that the County had abandoned, for street and road purposes, a strip 50 ft. in width along the outer edges, that is, the north and south sides, of the 200 ft. strip previously dedicated by plaintiffs. Plaintiffs and all defendants, except Dallas County, moved for judgment on the verdict; the County moved for judgment non obstante veredicto. The court denied plaintiffs' motion, but granted the motions filed by the defendants, rendered judgment in their favor, the judgment in favor of the County being non obstante veredicto; to which, plaintiffs excepted, gave notice of and perfected this appeal.
Although the appeal was perfected as to all defendants, it is obvious that plaintiffs do not seek reversal as to the defendants, Industrial Properties Corporation, the Sportatorium, Inc., or W. T. Cox; hence the judgment as to them is affirmed, and their connection with the case will receive no further mention.
As stated by this Court in Draper v. Presley, 111 S.W.2d 1124, 1126, we repeat here that, "It is too well settled to require citation of authorities that a court should never instruct a verdict in behalf of either party if the issue of fact to be determined is supported by evidence upon which reasonable minds could differ; and that judgment non obstante veredicto should never be rendered in a case, unless a directed verdict would be proper."
We also think it is so well settled as not to require citation of authorities that, whether or not the County abandoned the right to use 50 ft. on the outer edges, the north and south sides of the 200 ft.-in-width strip, as a part of the highway known as Cadiz Street, as found by the jury, was a question of fact inferable from the acts of the County, or its failure to act, of a nature inconsistent with an intention on its part to retain and assert an easement therein.
The main contention is that, as there was ample evidence to support the finding that Dallas County had abandoned 50 ft. in width of the 200 ft. strip previously dedicated by plaintiffs, the court erred, both in refusing to render judgment in their favor on the verdict of the jury and in rendering judgment non obstante veredicto in favor of the County.
The question raised requires an examination of the evidence, the most material one item of which, in our opinion, is the resolution adopted on August 5, 1935, by the Commissioners' Court of Dallas County, relinquishing to Martin Weiss, and abandoning for highway purposes, a strip 50 ft. in width on each side of a 200 ft.-in-width strip of land previously dedicated to the County by Martin Weiss and wife for use as right of way for Cadiz Street, said strip extending from the Cadiz Street Viaduct, east 720 ft. on the north side and 630 ft. on the south side. The significant bearing of this fact on the issue, whether or not the County had also abandoned similar strips on the north and south sides of the 200 ft.-in-width strip dedicated by plaintiffs for the identical use, in our opinion, is that the strip dedicated by plaintiffs adjoins immediately — at its east end — the strip of land dedicated by Weiss and wife, and extends Cadiz Street 242 ft. on the north side and 278 ft. on the south side, the combined *Page 830 dedications constituting 962 ft. of the north side of Cadiz Street and 908 ft. of the south side, the condition surrounding the two strips being substantially the same.
Plaintiffs also offered in evidence the official plat of Dallas County, compiled by its engineer under provisions of Art. 7344, R.C.S., showing Cadiz Street to be only 100 ft. in width; also, there was evidence tending to show that, for several years, the land in question had been misused by various persons for commercial profit; that is, for billboards displaying commercial advertisements; and for parking stations for hire; all this, after the Commissioners' Court had been informed by plaintiff Miller of such misuse. There was no evidence showing or tending to show either a present necessity or purpose, on the part of the County, to use the 50 ft. strips for highway purposes; or an intention to use the land for such purpose in the future. The decision of the Commissioners' Court, based upon the advice of the county engineer, that the 50 ft.-in-width strips on the north and south sides of the land dedicated by Weiss were not needed for highway purposes, hence were abandoned, was a circumstance strongly tending to show that the similar 50 ft. strips on the immediately adjoining Miller dedication, conditioned substantially as the Weiss land, were not needed or intended to be used as a part of the highway, which, together with the other facts and circumstances, we think, clearly presented the issue of abandonment, and sustain the finding of the jury that the County had abandoned the similar 50 ft. strips on the north and south sides of the land previously dedicated by plaintiffs. See Muhle v. N. Y., T. M. Railway Co.,86 Tex. 459, 25 S.W. 607; 1 Tex.Jur., p. 11, Sec. 11.
If, as found by the jury, the County abandoned the 50 ft.-in-width strips of land for highway purposes, the right was lost and cannot be revived except by a new dedication. McLennan County v. Taylor, Tex. Civ. App. 96 S.W.2d 997. Although several commissioners testified that the County did not intend to abandon the use of the strips of land in question, their testimony was not conclusive, but merely evidence to be considered in connection with the other facts and circumstances. If this were true, as said in the Note to Phy v. Hatfield (Sup.Ct., Tenn.), 135 Am. St. Rep. 892, "* * * it would follow that all any party would have to do in order to defeat the defense of abandonment would be to say he did not intend to abandon. The intention in such a case is to be derived from all the facts and circumstances of the case. * * * Abandonment, being a matter of intention, operates instanter: * * * Where the conduct of the party is such as to necessarily show an abandonment, he cannot evade the logical effect of his conduct by denying that he had any intention of abandoning the property: * * *."
However, it is contended that the right of the public to use the strips of land in question for highway purposes, having become vested by virtue of the dedication, the Commissioners' Court was without power to abandon such right. This proposition, in our opinion, is unsound. Sec. 18 of Art. 5 of the Constitution, Vernon's Ann.St., confers upon commissioners' courts jurisdiction over all county business; and Art. 2351, R.C.S. provides that such courts shall, "3. Lay out and establish, change and discontinue public roads and highways. * * * 6. Exercise general control over all roads, highways, ferries and bridges in their counties." It is thus seen that commissioners' courts are expressly authorized, not only to lay out and establish, but to change, discontinue and exercise general control over all roads and highways.
We have carefully examined the authorities cited in support of the propositions stated above, and find neither in point. The cases cited, except one, involved the authority of the Commissioners' Court to destroy or interfere with rights acquired by abutting property owners; denying such authority, but neither case announced the doctrine that the Commissioners' Court, acting for the public, could not abandon a highway, either in part or in its entirety. The other case cited, that of Yows v. Commissioners' Court, Tex. Civ. App. 41 S.W.2d 677, involved the construction of Art. 6703, R.C.S., which, in our opinion, is not applicable to the case at bar.
For the reasons stated, we are of opinion that the court erred in rendering judgment in favor of the County non obstante veredicto, but should have rendered judgment in favor of plaintiffs on the verdict of the jury. Therefore, the judgment below in favor of the County is reversed, and judgment here rendered for plaintiffs, on the verdict in their favor.
Reversed and rendered. *Page 831