I am in full accord with the majority opinion that title to the area in controversy does not rest in the City of Tyler.
The other conclusion that the area was not dedicated for use as a public square and that the fee simple title rests in Smith County without any restriction to sell or abandon same as a public square are, in my opinion, contrary to the undisputed facts in this record.
It appears that the majority opinion turns on the reasoning that this long continued use of the area by the public was by permission of the Commissioners' Court; and (2) a map or plat of the city was not of record when the lots were first sold along in 1846, and no proof that the plat was exhibited to the purchasers at such public sale.
The original act of the Legislature, enacted in April, 1846, authorized and directed the agents or commissioners therein named to lay off the town of Tyler and to sell lots to the highest bidder. It is to be observed, from a statement of the case in the majority opinion, that on December 21, 1846, approximately eight months subsequent to the initial act of the Legislature, the agents named were carrying out the mandate directed to them by conducting a public sale of lots. Two lots were sold by them to William B. Ochletree, and these agents described them as being Lots Nos. One and Two in Block No. One in the plat of said town of Tyler. This deed was recorded September 9, 1849.
Surely, by reason of such calls in above deed pursuant to the public sale held on December 21, 1846, the agents had platted a townsite and a plat of the town was then in existence. The oldest known map of Tyler which was filed for record some years subsequent to the public sale is still recognized today. This map shows that Lots One and Two in Block One of the town of Tyler then faced and abutted upon a rectangular vacant area of ground. Lots One and Two in Block No. One, after a lapse of one hundred years, still faces and abuts upon the same rectangular area of land, here in controversy.
In deeds executed and recorded prior to the time above map was filed for record and subsequent thereto in those early days, from 1853 to 1877, the grantor in the respective deeds after calling for a certain lot in a particular block used the further call as being located on the north side of public square; S.E. corner of public square; fronting on the public square; or the west side or south side of the public square. Through the years to the present such calls have been used and under them every available space that faces and abuts the area is occupied by mercantile buildings. The streets around the area have been constructed in recognition of a public square.
In October, 1847, long prior to the time above map was recorded, the commissioners had ordered that a courthouse be built, and in January, 1849, ordered sold the 'courthouse now standing on the public square'; and in 1851 ordered that a *Page 503 brick courthouse be erected 'on the Center of the public square.'
In 1850, Tyler incorporated and designated its territorial limits to be: 'It shall extend over 100 acres of land in a square, laid off so as to leave the public square of said town in the center * * *.' In 1855, the Commissioners Court in its order for a survey called the area a public square and in reporting the results of the survey, the surveyor returned 'field notes of the public square of Tyler.'
The intent which the Legislative Acts express, the acts of the agents and commissioners therein named in carrying out the mandates of the Legislature; the constant and repeated reference by city and county officials, surveyor and the citizens of the community to the area as a public square, and every use detailed in the majority opinion constitute, if not an expressed dedication by words or deed, then indisputably an implied dedication of the area as a public square, as a result of the uses made of it for over one hundred years. Too much water has flowed over the dam and too many years have passed in the history of this square for me to agree to disturb the present status of this area at this late date. There is not a single act or official record inconsistent with the intent to dedicate the area as a public square.
As stated in Oswald v. Grenet, 22 Tex. 94, 99, quoted with approval in Ramthun v. Halfman, 58 Tex. 551, 553, and applicable here: 'Respecting what will amount to or may be received as evidence of a dedication, the law is too well settled to admit of controversy. A setting apart, or dedication to a public use, to be effectual, need not be by deed; nor need it be evidenced by the use of it having been continued for any particular time; it is enough that there has been some clear, unequivocal act or declaration of the proprietor, evidencing an intention to set it apart for a public use, and that others have acted in reference to and upon the faith of such manifestation of intention. If the act of dedication be unequivocal, it may take place immediately. If there be no such act, it may be evidenced by an uninterrupted use, and that need not be of any particular time.' See also 16 Am.Jur., Dedication, Secs. 17, 33, 34, and 45; 26 C.J.S., Dedication, §§ 2, 13 and 15; Lamar County v. Clements, 49 Tex. 347.
Appellee claims that this long continued use of the area as a public square was merely permissible. The supervision of this area was probably lodged in the Commissioners' Court comparable to that exercised by a city in the care of a public park or other public grounds. Other than this, it is my opinion that the acts of the Commissioners' Court were the acts of the public being expressed by this public's elected agency. The Commissioners' use was the public's use. The Commissioners' supervision was that of the public.