(dissenting).
I respectfully dissent. A thorough consideration of the record in this case since the filing of respondents’ motion for rehearing has convinced me that the opinion of this court, delivered on March 4, 1964, has led to the entry of a judgment against Tall Timbers which is not in keeping with the record and prior decisions of this court.
The erroneous result is best revealed in a paragraph of the opinion which reads:
“The conclusive fact is that the easement tract in controversy was shown only as an easement and the easement areas shown on the plat were not dedicated to the public for any use. The easement tract was not marked as a street nor was there any indication that it was intended to be a street. It was excluded from the only public dedication, expressed or implied, either on the plat or in the document of Reservations. Accordingly, there are no circumstances under which it can be said that the reservation of the forty foot eásement area in controversy.carried a dedication as a public street.” (Emphasis added.)
The opinion contains other language which indicates an erroneous conception of the rules governing the interpretation of unambiguous instruments, in this case, the-plat. The reference in Tall Timbers’ deed, to the plat of Tall Timbers Section was not for descriptive purposes only. The In-tervenor, River Oaks Corporation, owned', all the title to the lands laid out, surveyed and platted on the plat of Tall Timbers. Section at the time of the dedication and. filing for record of the plat. This plat specifically included Tall Timbers’ property.. The Tall Timbers’ “Reserved” tract was. created by and had its origin from such, plat. It is undisputed in the record that. Tall Timbers purchased its property by-reference to and in reliance upon the plat, of Tall Timbers Section upon which the-disputed easement was shown as a street or roadway.
It is undisputed that Tall Timbers before-accepting its deed of March 9, 1959, relied, on the plat and document of Tall Timbers. Section and attributed great value to the-use of the disputed easement (the Southwest 40’ easement) as a street or roadway-connecting Tall Timbers’ property to West-lane street. Furthermore, the record shows, that Tall Timbers had no notice or knowledge of any of the claims or contentions of Anderson that the disputed easement is a. private easement restricted to use for utility-purposes for the exclusive use and benefit. of the residents and owners of property in-Tall Timbers Section, or that such easement is in any manner restricted to use for-utility purposes, or that Tall Timbers had', no right to the use of such easement as a. roadway.
The undisputed evidence is to the contrary, that is, the undisputed evidence conclusively shows and does not raise an issue of fact that Tall Timbers, in particular,, and the purchasers of all properties abutting the two 40' easements, purchased with: reference to the plat designating the 40'' *25«easements and that such easements were to he used as a passageway or roadway.
The summary judgment record in this «ase clearly demonstrates the correctness ■of the position taken by Tall Timbers. The record shows that in 1951, J. C. Suttles was -the owner of Lot 1, Block 88. This lot is situated adjacent to and immediately south •of the Southwest 4O' easement involved in this case. The record shows that on April 5, 1951, J. C. Suttles entered into a contract with River Oaks Corporation whereby Sut-iles approved and accepted the following •contract:
“Dear Mr. Suttles:
“This relplies to your letter of March 29 and supplements our letter of March 21 with reference to the 40-foot easement abutting the northwesterly side of Lot 1, Block 88, in the Tall Timbers Section of River Oaks.
“This letter will serve to extend to you the privilege of improving and using as a private driveway for access to your site (part of Lot 1, Block 88) this 40-foot strip, with the understanding that you will vacate same promptly upon request of this company at any time, and, if requested by this company, will restore it to its original condition, and that further, should you sell or lease your property, you will inform the new owner or tenant of this stipulation in writing, and furnish this company copy thereof.
“Please sign and return one of the duplicate copies of this letter, keeping the other for your file.
“Yours truly,
RIVER OAKS CORPORATION
By H. A. Kipp, Vice President “Approved and Accepted:
J. C. Suttles”
. For a better understanding of the scope of this contract and to show conclusively that the 4(7 easement was reserved by River Oaks Corporation particularly for the benefit of the “Reserved” 6-acre tract, I call attention to River Oaks’ letter of March 21, 1951, addressed to J. C. Suttles, which led to the April 5, 1951, contract. That letter reads:
“Dear Mr. Suttles:
“We have been advised by Mr. Malcolm S. McCorquodale that he recently sold you his property in Tall Timbers. “In this connection, we would like to call your attention to the 40-foot easement along the northwesterly line of your property, with which you are no doubt already familiar. We have been contemplating the opening of this easement through to the 6-acre tract to the rear (southwest) which is owned by this company. We have been permitting your predecessor in title the use of this easement and we would be willing for you to continue to use it until such time as we are ready to develop this 6-acre tract, which time is uncertain.
“We desire to draw your attention to this matter now so you will not be inconvenienced or put to any extra expense in doing anything that would prevent us from the future use or opening up of this easement.
“We would be glad to know whether you desire to continue the use of this easement along the above lines.
“Yours very truly,
RIVER OAKS CORPORATION By H. A. Kipp, Vice President”
On March 9, 1959, the same day Tall Timbers obtained its deed, River Oaks addressed another letter to J. C. Suttles. This letter contains a request in keeping with the April 5, 1951, contract. It reads:
“Dear Mr. Suttles:
“We refer to our letter to you dated April 5, 1951, bearing your approval, and wish to advise that, at long last, we find it necessary to terminate the arrangement under which we granted you our consent to use the 40-foot easement as a driveway for access to your *26site (part of Lot 1, Block 88, of Tall Timbers Section).
“We regret that circumstances now make it necessary to withdraw this privilege and would therefore request that you vacate the property promptly. “Wé are glad that we were able to make this arrangement available to you over these past several years and would appreciate your acknowledging receipt of this letter at your early convenience. “Yours truly,
RIVER OAKS CORPORATION
By O. J. Cadwallader Vice President & Treasurer”
The only answer to this letter is the filing of this law suit in 1959, by J. C. Suttles et al., sometime after the date of the letter and deed to Tall Timbers.
Still moré convincing evidence is to be found in the agreement of 1941 between Malcolm S. McCorquodale, Suttles’ predecessor in title, and River Oaks. In that agreement it was expressly recognized and recited that a 4CK easement or right of way connecting Westlane with a six-acre tract (Reserved tract) existed. Mr. McCorquo-dale stated in his letter of February 17, 1941, to River Oaks, “[i]f this easement is ever developed into a street or alley, the logical place for my driveway would be directly off this alley from the west to my garage, which is on that side. My only purpose in using a portion of this easement for my driveway was that I did not want to build my driveway on some other part of my lot and then re-locate it after the easement is available for a driveway.”-
Another convincing circumstance that the two 40' easements were reserved by River Oaks for use of the public in connection with the “Reserved Southwest” approximately 6 acres and the reserved “Northwest” tract is the admission of Mr. W. Carloss Morris, Jr., purchaser of the “Northwest” reserved tract. Mr. Morris, during the negotiations to purchase the “Northwest” reserved tract from River Oaks Corporation stated on one occasion that River Oaks would not be justified in warranting the Northwest 40' easement to him, but proposed that the 40' easement be conveyed to him in the form of a quitclaim. Mr. Morris referred to the fact that the 40' easement was marked “Easement” on the plat. River Oaks replied to the Morris suggestion by advising that "it would be inappropriate and perhaps, impossible for us to deed you the right-of-way in any form, since it has been dedicated by recordation of the plat.” (Emphasis added.) The fact remains that the 40' easement was never conveyed to Mr. Morris. On March 5, 1945, River Oaks Corporation did convey to Mr. Morris the reserved tract by a deed in which the tract was identified and described by express references to the subdivision plat.
It is undisputed that Tall Timbers had knowledge of this agreement when it purchased its “Reserved Tract” on March 9, 1959, -from River Oaks Corporation for $258,000.00, and obligated itself to River Oaks Corporation to construct an apartment project at a cost estimated to be in excess of $1,200,000.00. Certainly these facts disprove the holding of this court that Tall Timbers cannot recover because the plat merely shows an “Easement.” The evidence is undisputed that the 40' easements were reserved for public use as a passageway or roadway, and that Tall Timbers purchased its property by reference to and in reliance upon the plat of Tall Timbers Section. If the prior decisions of this court are to remain effective, this Court must hold that the reserved 40' easements were reserved for a passageway or roadway for the use of the owners of the “Reserved Tract.” This is true even though the only evidence was the plat with the 40' easements designated thereon.
This case went off on summary judgment. Yet, this court attempts to go into facts in an effort to explain why the Northwest 40' easement was used as a passageway or roadway. This Northwest 40' easement occupies the same status as the Southwest 40' easement. Tall Timbers and all others *27who purchased with reference to the plat not only had a plat of record which designated two 40” easements, but also were aware of the continuous use, beginning with the initial development of the North “Reserved” tract, of the North 40' easement shown on the plat of Tall Timbers Section by the owners and occupants of the North “Reserved” tract and of the properties abutting the lateral length of such North 40' easement, as a street or roadway affording access by automobile and otherwise to and from Inverness Drive.
In addition, the undisputed facts show the present use and the continuous use for more than 23 years of most of the length and course of the disputed Southwest 40' easement by the owners and occupants of Lot 1, Block 88, of Tall Timbers Section, as a driveway affording access by automobile and otherwise to and from Westlane street. This use has been permissive only and not adverse or exclusive. It is clear from the record that it was the intention of River Oaks Corporation, the owner of all the land at the time of the filing of the plat, to dedicate the 40' easements as passageways or roadways for public use. There is not one word in the record which warrants this court in upholding an injunction depriving Tall Timbers, its tenants and other persons having whatever occasions to go to or depart from Tall Timbers’ property of the free and unrestricted use of the disputed Southwest 40' easement as a street or roadway.
In this regard, it is worthy to note that River Oaks Corporation has never rendered the South 40' easement or the North 40' easement or the lands affected thereby or any portion thereof or interest therein for ad valorem taxation by the State of Texas, County of Harris, the City of Houston or any other political subdivision with respect to any year subsequent to 1939. River Oaks Corporation has never paid ad valor-em taxes to any such public body at any time or times since 1939 on either or both of such 40' easements or any interest therein, and no such public body at any time or times since 1939 has levied or assessed ad valorem taxes against such property or reflected such property upon its tax rolls as constituting the private property of River Oaks Corporation. Furthermore, at no time prior to the appearance of the City of Houston made on February 3, 1960, in the temporary injunction proceeding in this cause, did the City of Houston communicate to River Oaks Corporation its refusal, or intention to refuse, to accept any of the public dedications of streets, easements and rights of way shown on the plat. The record in this case clearly discloses that it was the express desire and intention of River Oaks Corporation, in filing for record on January 11, 1939, the subdivision plat and document of Tall Timbers Section of River Oaks Addition, to dedicate to the public for general street purposes the 40' easement lying between Lots 7 and 8, Block 91, and also the 40' easement in controversy, lying between Lot 1, Block 91, and Lot 1, Block 88, as reflected on the subdivision plat. The authorities to be discussed below necessitate this court’s giving effect to such intention.
In my opinion, the question of whether the disputed southwest 40' easement has been dedicated to public use is resolved by the well-established principle that the sale Of lots by reference' to a recorded plat constitutes, as between the grantor and grantee, a dedication of all the alleys, streets and other ways designated in the plat. See Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950). This principle has been regarded as so elementary that “[a]n extended citation or digest of authorities would serve no useful purpose.” Manziel v. Railroad Commission of Texas, wr. ref’d., Tex.Civ.App., 197 S.W.2d 490, 493 (1946).
In determining whether the above “elementary principle” is applicable to the present case, it is this court’s duty to inquire (a) whether the plat of Tall Timbers Section shows the existence of the disputed easement, (b) whether it can be ascertained with reasonable certainty the purpose for *28which such easement was intended and (c) whether Respondent purchased its “Reserved” tract in reliance on such plat, in order to determine whether the disputed easement has been dedicated to the use so ascertained. As this court stated in Fall v. Thompson, (1935) 126 Tex. 326, 87 S.W.2d 712, 713:
“If it be true that the map of Zang’s Crystal Hill addition which was filed for record shows the existence of this parkway in the middle of Zang boulevard, and if it can be ascertained with reasonable certainty the purpose for which this parkway was intended, and if it be true that plaintiff purchased her property within said addition in reliance upon said map, then she acquired by purchase as an incident to her property the right to have such parkway left open for the uses and purpose for which it was dedicated. In other words, she has a right to say that it shall not be diverted to any use inconsistent with the purpose for which the dedication was made. City of Corsicana v. Zorn, 97 Tex. 317, 323, 78 S.W. 924; Clement v. City of Paris, 107 Tex. 200, 175 S.W. 672.”
The dedicatory language in the document entitled “Reservations, Restrictions and Covenants in Tall Timbers Section of River Oaks” reads as follows (referring to the plat of Tall Timbers Section) :
“* * * Said map has been duly authenticated by the President and Secretary of RIVER OAKS, with proper certificate showing dedication of the streets, drives, lanes and roads, to the use of the present and future owners of the lots and to the public, subject to the reservations, restrictions and covenants herein contained, to the same extent as though copied at length in said dedication certificate.” (Emphasis added.)
This court has held that the word “streets” appearing in the dedicatory certificate is limited in its application to the named streets appearing on the plat, and thereby excludes any easements shown on the plat as also being dedicated to public use. I cannot agree with such a narrow construction, which gives controlling effect to what a thing is called.
A way over land set apart for public travel in a town or city is a street. This is true, no matter what the passageway may be called, inasmuch as it is the purpose for which it is laid out, and the use made of it, that determines its character. The term “street” is a general term, and includes all urban ways which can be and are generally used for the ordinary purposes of travel. See Kalteyer v. Sullivan, (1898) wr. ’ref’d., 18 Tex.Civ.App. 488, 46 S.W. 288; City of Houston v. Hughes, Tex.Civ.App. (1955) 284 S.W.2d 249, wr. ref’d., n.r.e.; Town of Refugio v. Strauch, Tex.Com.App., 29 S.W.2d 1041 (1930).
Jones v. Sun Oil Co., wr. ref’d., Tex.Civ.App., 110 S.W.2d 80, involved the construction of a deed containing a reservation which read “W. E. Jones is retaining free and unobstructed use of a twelve-foot lane.” (Emphasis added.) This language was construed to reserve to Jones “an easement or passageway” rather than the fee to the strip in question.
The question as to what constitutes a “road” was before the Court in Bradford v. Moseley, Tex.Com.App., judgm. approved, 223 S.W. 171. It was therein stated that :
“What is a public road is in a measure dependent on the facts of each particular case, but the character of a road does not depend on its length, nor upon the place to which it leads, nor is its character determined by the number of people who actually travel upon it. Decker v. Menard (Civ.App.) 25 S.W. 728; Elliott on Roads, ss 1 to 7. A road may be established which is a cul-de-sac. Id. A road open to the public is a public road, though one person may be most benefited by it. Galveston, [H. & S. A. R. Co.] etc. v. *29Baudat, 18 Tex.Civ.App. 595, 45 S.W. 939. It is a highway if there is a general right to use it for travel, and if it is open to the use of all the people. Elliott on Roads, ss 1-3; Sumner [County] etc. v. Interurban, etc., 141 Tenn. 493, 213 S.W. 412 [5 A.L.R. 765].” (Emphasis added.)
With the above-cited authorities in mind, it is clear that both of the 40' easements in Tall Timbers Section, each being a narrow way so located on the plat as to be obviously designed for use as a roadway to a “Reserved” tract, and one of which has been used as a roadway for more than ten years, are “streets,” are “lanes,” and are “roads” within the scope and application of the dedicatory certificate on the plat and within the dedicatory language in the reservations document.
Apart from the above-cited authorities, there is another reason why I cannot agree with the majority holding that the 40' easement in dispute is not a “street,” “drive,” “lane,” or “road,” but that it is still a part of the Tall Timbers Section. The definition of what comprises Tall Timbers Section of River Oaks is clearly set out in the reservations document as follows:
“BE IT RESOLVED:
“That the reservations, restrictions and covenants hereinafter set out shall be, and the same are, made applicable to the Tall Timbers Section of River Oaks, an Addition west of the City of Houston, consisting of Blocks Eighth-eight (88), Eighty-nine (89), Ninety (90), Ninety-one (91) and Ninety-two (92), lying and being situated in the A. C. Reynolds League, Harris County, Texas, as shown on map prepared by H. A. Kipp on file in the office of RIVER OAKS, and which map shall be hereafter recorded in the Harris County Map Records, and that said blocks, together with the streets, drives, lanes and roads, are hereby designated, and shall be known and described, as the Tall Timbers Section of River Oaks, an Addition west of the City of Houston. The two tracts marked ‘Reserved’, one at the northwest corner, the other at the southwest corner of said map, approximating 6 acres each, as well as Tract (Lot) 2 in Block 92, are not a part of this Section. * * *”
The above definition as to what is included within Tall Timbers Section is limited to:
“First, the numbered Blocks 88, 89, 90, 91 and 92 ‘as shown on map’ (excluding Tract (Lot) 2 in Block 92); and
“Second, the ‘streets, drives, lanes and roads’.”
Obviously the 40 easement in dispute does not fall within the first category. Therefore, it must come within the second category, and therefore constitute a “street, drive, lane or road,” or it necessarily does not make up a part of Tall Timbers Section.
This brings us to the question as to whether it can be ascertained with reasonable certainty the purpose for which the southwest 4CK easement was intended. According to the majority of the Court “[t]he easement tract was not marked as a street nor was there any indication that it was intended to be a street.” (Emphasis added.) I do not agree.
It should be emphasized that the only intention properly to be considered by this court, in determining the purpose of the disputed easement, is the intention of the original subdivider, River Oaks Corporation. See Shields v. Harris County, Tex.Civ.App., wr. ref’d., n.r.e., 248 S.W.2d 510. It would unduly lengthen this dissent to set out in detail the evidence showing that River Oaks Corporation did intend for the 40' easement to be used as a passageway or roadway. It is clear that the River Oaks Corporation did intend the 40' easements to be used as roads or passageways.
Finally, the evidence is undisputed that Tall Timbers Corporation did purchase its reserve tract in reference to and reliance *30on the plat of Tall Timbers Section. According to the majority, "the cornerstone of the private rights asserted by Tall Timbers Corporation must be that the subdivision plat and document of Reservations dedicated the easement tract to public use * * ” and further that “the private right so asserted is precluded by our holding * * * that the easement tract in controversy was not dedicated to public use. * * * ” While I am firmly convinced that there was a dedication of these 40' easements to the use of the public, a contrary holding should not automatically foreclose Tall Timbers Corporation’s right to use the southwest easement. As stated by this court in Wolf v. Brass, 72 Tex. 133, 12 S.W. 159, 160:
“ ^ * * Under the facts of this case we think it wholly immaterial whether there was a dedication of this alley to the use of the public or not. Technically speaking, a dedication can be made to public uses only; but, if the proprietor of the fee sells and conveys lots with reference to an alley or street not then opened on land owned' by him, the individual purchasers thereunder acquire an easement in the land designated as an alley or street, and such alley or street becomes charged with the servitude incident to such easement. Such purchasers have, by virtue of the easement thus acquired, the right to have such street or alley kept open, whether the public has or not accepted the dedication by some acts of user. Oswald v. Grenet, 22 Tex. 94; Washb. Easem. 181.” (Emphasis added.)
In my opinion, it is beyond doubt that in purchasing and paying for their reserve tract, Tall Timbers Corporation purchased and paid for, as appurtenant to it, every advantage, privilege and easement which the plat represented as belonging to the reserved tract. This being so, Tall Timbers Corporation has the right to have such easement left open for use as a roadway. See City of Corsicana v. Zorn, 97 Tex. 317, 78 S.W. 924.
The opinion of the majority primarily rests on the holding that the 40' easement in dispute was an easement reservation, restricted to use for utility purposes for the exclusive use and benefit of the residents and owners of property in Tall Timbers Section, instead of a dedication of the easement for street purposes. This court has earlier announced the rule that such a distinction between a “reservation” and a “dedication” in cases of this nature is purely nominal. See Lamar County v. Clements, 49 Tex. 347 (1878).
In conclusion, it is well to set out the statement of this court in Oswald v. Grenet, 22 Tex. 94 (1858), which has been reiterated again and again since its enunciation, as follows:
“A dedication has been defined to be the act of devoting or giving property, for some proper object, and in such manner as to conclude the owner. Hunter v. Trustees, etc. 6 Hill, 407, 411. Thus, if one owning land, exhibit a map of it, on which a street is defined, though not as yet opened, and building lots be sold by him, with reference to a front or rear on that street, this operates as an immediate dedication of the street; and the purchasers of lots have a right to have the street thrown open forever. Wyman v. Mayor, etc. 11 Wend. 486; Livingston v. Mayor, etc. 8 id. 85; 1 Hill, N.Y. 189, 192. * * * the general doctrine is thus stated, upon the authority of numerous cases: ‘If the owner of land lays out and establishes a town, and makes and exhibits a plan of the town, with various plots of spare ground, such as streets, alleys, quays, etc., and sells the lots, with clear reference to that plan, the purchasers of the lots acquire, as appurtenant to their lots, every easement, privilege, and advantage, which the plan represents as belonging to them, as part of the town, or to their owners as citizens of the town. And the right thus passing to the purchasers, is not the mere right *31that the purchaser may use these streets, or other public places, according to their appropriate purposes, but a right vests in the purchasers, that all persons whatever, as their occasions may require or invite, may so use them; in other words, the sale and conveyance of lots in the town, and according to its plan, imply a grant or covenant to the purchasers* that the streets and other public places, indicated as such upon the plan, ’shall be forever open to the use of the’public, free from all-claim or interference of the proprietor, inconsistent with 'such use.’ 2 Smith, Lead.Cas. 5th Am. ed. 208, 209; Rowan’s Ex’rs v. Portland, 8 B.Mon. 232, 237 ; 3 id. 478, 481; 18 Ohio, 18; Spencer, 86, 106; 11 B.Mon. 163.”
I see no basis for departing from the law in this area as announced by the courts of this state for the last 100 years.
The judgment of the Court of Civil Appeals should be affirmed.