(dissenting).
On a former day of this term I wrote the -unanimous opinion in the above cause in -which this court affirmed in part and reversed and rendered in part the judgment of the trial court. After the submission and argument of the motion for rehearing I have again carefully reviewed the record and I have not changed my view as to the disposition that should be made of this cause and I am therefore unable to agree with the majority opinion of the court this day handed down and I accordingly file my dissent.
The nature of the controversy is such that it is necessary for me to make a detailed statement.
This is a suit for damages alleged to have been sustained by the plaintiff Thomas by virtue of a trespass upon his premises by W. F. Crawford, and also involves the title to a part of the old Speegleville Road and a portion of North 33rd Street lying between Blocks 41 and 42 of the original Dean Addition to the City of Waco, McLennan County, Texas, and also the title to certain lots not pertinent to this discussion, which, under the evidence and admission of plaintiff, passed out of the case. At the close of the evidence the court withdrew the matter from the jury and held in effect: That the contract of settlement and agreement between the Lacys and Crawford and the judgment entered in Causes Nos. 28348 and 28417, consolidated, in the 54th District Court, were not ambiguous and that there was no issue of fact to go to the jury, but found that defendant Crawford was a trespasser on the property under lease to plaintiff and that the plaintiff was entitled to nominal damages in the sum of $1 and costs; that the title is quieted in the Lacys to the area formerly a part of the old Speegleville Road and the portion of 33rd Street now embraced in Hillcrest Annex Addition, which includes a part of Lots 9, 10 and 11, and which property lies between Blocks Nos. 41 and 42 of the original Dean Addition and the alley on the north sidé of Block No. 41; that said streets and alleys are closed and abandoned and that the title to said property embraced therein is in the Lacys; that the Lacys are entitled to erect the kind and character of structure on the property as they desire, save and except they cannot erect any building or structure on the portion of 33rd Street ly*88ing between Blocks Nos. 41 and 42 of the original Dean Addition and a part of Lots 9, 10 and 11, Hillcrest Annex Addition, which was formerly a part of 33rd Street, and described the property by metes and bounds; that no buildings can be built on the parts of Lots 9, 10 and 11 nearer Pine Street than the east line of the store building now rented by the plaintiff; that title to the restricted tracts described by metes and bounds is in the Lacys and that said restricted alleys are not streets, and that said agreement is a covenant not to build or erect any structure thereon; that that portion of 33rd Street running from the north line of Pine Street as now located to the projected north line of Block 42 of the original Dean Addition shall be left an open space and no structure or building erected thereon; that plaintiff take nothing against defendants Lacys by reason of his cross-action; and that defendant Crawford and his co-defendants take nothing against any of the parties on their cross-actions and pleas of intervention. The court denied the prayer for injunction without prejudice to grant injunction in the future if the facts presented to the court should warrant such action. Defendant Crawford and his co-defendants excepted to the ruling of the court and perfected their appeal.
Appellant’s first point is: “Under the judgment in suits Nos. 28348 and 28417, consolidated, and the settlement agreement, 33rd Street was preserved as a street and the defendant, W. F. Crawford, had a right to use it as a street, and in the absence of damage from negligence in such use, was not guilty of a trespass as a matter of law.” It is my view that this contention should be sustained.
The point raised requires a comprehensive statement. Pertinent to this discussion Crawford and his co-defendants were plaintiffs in Causes Nos. 28348 and 28417. In Cause No. 28348 the Crawfords alleged certain rights they had by virtue of having purchased property in Dean’s Addition (under the original plat) and claimed certain rights in Pine Street and North 33rd Street and the alleys in the original plat. They specifically alleged that they had been injured by the Lacys by virtue of a replatting of the property and that the Lacys had “obliterated and disregarded the subdivision of said lots in Block 41 and the location and existence as an open street of said 33rd Street by executing a new plat creating what is therein denominated as Hill-crest Annex Addition causing said plat to be filed for record * * * and that in said new plat the dimensions and locations of said lots in Block 41 are completely changed, and said 33rd Street as shown in said Dean’s Addition plat is wholly obliterated and converted into lots in said new Block ‘J’ of said Addition, and being a part of lots 7, 8, 9, 10, 11 and 22 in such new block * * * and is offering lots for sale according to the new plat, and unless restrained and enjoined, will sell such property in accordance with said new plat and permit structures to be built thereon in accordance with said new plat;” that they are “threatening to use said portion of 33rd Street included in said new addition for the creation of what is known as a community store center to be used for business and commercial purposes, and to that end is proceeding to close up said street and erect thereon such community stores or business structures, or offer said property for sale for said purpose; that if the lots and streets as shown in said Dean’s Addition plat are preserved the residences on plaintiffs’ lots will face residences that cannot exceed the restricted number in said Block 41 and a broad street to the west thereof open to the north beyond such lots; and that the closing up of said street will destroy or greatly diminish the value of plaintiffs’ property, and the plaintiffs are entitled to have such area environment preserved as fixed in said plat and said agreement.”
Among other things, the Crawfords prayed that the Lacys be.restrained “from closing 33rd Street at any place in the full length thereof as shown in said Dean’s Addition plat; from placing any structure thereon; from constructing any store house or building thereon; from doing any act or thing that will in any wise interfere with or diminish the use of said street as an open *89street; and from conveying, selling or otherwise disposing of the area included in 33rd Street as shown in said plat.”
The Crawfords and the Lacys thereafter executed an agreement wherein they compromised and settled the matters in controversy in the above numbered causes. This settlement agreement, among other things, bound the Lacys to convey certain lots in Block J of the Hillcrest Annex Addition (which was the new plat of the Addition) and in addition thereto provided “There will also be conveyed to W. F. Crawford that part of lot 11 of said Block ‘J’ east of the continuation of the present east curb line of 33rd Street subject to said restrictions above, and Crawford agrees to construct a standard curb and gutter along said line to its intersection with the west line of lot 11 only and along the present north curb line of Pine Street. The Lacys will continue to curb and gutter from the west line of lot 11 around to 33rd Street as now located.” The Crawfords and the Lacys performed the above obligations. The curb line constructed in accordance with the provisions of this part of the contract crossed 33rd Street and intersected the new 33rd Street as it was extended under the terms of this agreement, and that part of 33rd Street north o# the curb line constructed around and across it was closed and abandoned. The contract further provided: “No building or structure will be built on the portion of old North 33rd Street between Blocks 41 and 42 of the original Dean Addition and said part of old 33rd Street mill be kept open. No structure of any kind will be built on the portion of Block 42 that lies on the Northeast side of present 33rd Street nearer to Pine Street than the present store building now being constructed thereon, the east line of said building is now located as follows: (then follows description of this location by metes and bounds) * * *. No building or structure for commercial or apartment use will be built on the portion of Block 42 of the original Dean Addition which lies southwest of the present 33rd Street and no part of said portion of Block 42 will be used for commercial purposes, for parking or any use incidental to neighboring businesses except the west ten feet thereof may be used for widening Carter Street and such portion of the south end of Block 42 as necessary to allow the opening of Pine Street with a curb to curb width of 60 feet from the south curb line as hereinafter provided and the portion of said block outside of a curb line as now established on the ground, curbing the corners of said portion of Block 42 as shown on the attached plat.”
I think it is clear from the settlement agreement that it was the intention of the contracting parties to keep open that part of North 33rd Street there described, and to secure to the Crawfords the protection of the explicit building restrictions on old North 33rd Street and Block 42. The open street at the place in question and the above restrictions were a part of the things that the Crawfords sought to preserve in Cause No. 28417. Stated more clearly, the Crawfords in Cause No. 28417 sought to preserve the lot lines, the open streets and residential character of Blocks 42 to .45 inclusive, according to the original plat of Dean’s Addition, and these were a part of the important things covered in the settlement agreement. All parties seem to agree that the, residential character of Blocks 42 to 45 inclusive were preserved by the settlement agreement and judgment entered thereon, but it is the contention of the appellees that since such judgment confirmed the new plat of Hillcrest Annex Addition and quieted title to the Lacys to the area formerly a part of the old Spee-gleville Road and that portion of 33rd Street embraced in Hillcrest Annex Addition and the area on the north side of Block 41 of the original plat of Dean Addition and that portion of Pine Street between Blocks 41 and 42 of the original plat of Dean Addition and decreed that said streets and alleys are closed and abandoned, they (appellees) here contend (and the majority of the court now adopts such view) that old 33rd Street is now closed and abandoned at the place in question and that the only restriction placed upon them with reference to 33rd Street is the restriction upon that portion lying between Blocks 41 and 42 to the effect that the *90appellees shall not erect any improvements thereon 'hut shall leave the area open. They further contend that such restriction is not for the benefit of the public but only for persons who are the property owners abutting this property. I am not in accord with this view.
First of all, the quotation from the pleadings tendered in evidence on the trial of this cause discloses the heart of the subject matter involved in the settlement agreement. I think it is singular that there is no limitation in the settlement agreement as to the use of 33rd Street at the point in question and the language in the contract specifically provided that it shall be “kept open.” In 1863 our Supreme Court in Engelking v. Von Wamel, 26 Tex. 469, point page 471, announced this general rule: “Where language is plain and unambiguous there is no reason for construction. It is never admissible to resort to subtle and forced constructions to limit or extend the meaning of language * * See also 39 Tex.Jur. 189, sec. 106. The foregoing rule was not changed by our Supreme Court in Citizens Natl. Bank v. Texas & Pac. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003, 1004, points 1-2, 3, 4, 5-6, page 1006. In Crosbyton-South Plains R. Co. v. Railroad Commission of Texas, Tex.Civ.App., 169 S.W. 1038, 1041, at page 1041, writ ref., we find this statement: “The primary rule of construction is that words, not technical in their nature, should be taken in their ordinary acceptation.” (Date of opinion, 1914.) If the word “open” needs any definition to ascertain the intention of the parties, we find that its primary meaning as announced in Webster’s New International Dictionary is: “(1) * * * affording free ingress and egress applied to passageways; as an open road * * I do not believe the definition quoted in the majority opinion is applicable to the factual situation here. Moreover, one of Crawford’s motives for the filing of Cause No. 28417 was to preserve the status of 33rd Street and to keep it open, as well as to prevent the Lacys from constructing buildings in the streets and alleys and to enforce certain building restrictions on Block 42. The status of 33rd Street was already definitely fixed when the settlement agreement and the judgment entered thereon provided that it shall be kept open. Since the street was to be kept open, it is clear to me that it was the intention of the parties that its use would not be burdened with any limitation that might be made of its use by Crawford or anyone else. See 12 Amer. Jur. sec. 241, p. 772; Id. sec. 249, p. 787. I think the provisions in the contract with reference to the construction of the curb along the east line of old North 33rd Street and around and across old North 33rd Street to where it intersects the new 33rd Street as extended shows that it was the intention of the parties to keep this portion of 33rd Street open, and when they provided in the contract that that part of old 33rd Street therein described was to be kept open, such language meant exactly what it said. Since the contract provided in plain and unambiguous language that that part of the street was to be kept open, I cannot bring myself to believe that the parties intended that it was to be kept open within the meaning of the word as quoted in the majority opinion. If we are to arrive at the intention of the parties in the settlement agreement, we must look to the subject matter that they had in mind when they sought to settle the controversy between them. When we do this it is clear that they were not seeking to keep 33rd Street, at the point in question, as just an open space; otherwise, there would have been no need to define it by metes and bounds and provide for the construction of the curb in the manner so provided in the original agreement. I think it is pertinent to observe here that after the judgment was entered following the settlement agreement the Lacys, in pursuance of said agreement, conveyed to Crawford that part of Lot 11 of said Block • J east of the continuation of the present east curb line of 33rd Street. This deed conveyed a portion of Lot 11 by express reference to North 33rd Street and the east curb line of North 33rd Street fixed by the calls in the deed as determined by survey made in connection with the deed. Since the status of 33rd Street had been definitely fixed long prior to this contro*91versy and had been dedicated by use and its location and boundaries had not been changed at the point in question by the settlement agreement and since such agreement specifically provided that said portion of the street 'bounded by the curb line shall be kept open, we think the rule announced by our Supreme Court in Texas Bithulithic Co. v. Warwick, 293 S.W. 160, point page 164, is pertinent and applicable and controlling here: “Therefore we think the courts are exactly right when they say that a deed does carry the property to the center of the adjoining street unless such deed contains a clause which expressly declares the contrary intention or contains some other declaration equivalent to such an express declaration. In other words, we think that the purchaser of a lot should be put definitely upon notice that he has no rights ⅛ the'sidewalk and street in front of his property, if that is the intention of the grantor.” (There are no such limitations or restrictions in this deed.) This exact question was before our Supreme Court in Cox v. Campbell, 135 Tex. 428, 143 S.W.2d 361 and Cantley v. Gulf Production Co., 135 Tex. 339, 143 S.W.2d 912, and the court said in the last cited case, in point 2 on page 915: “ 'The rule has been definitely announced in the Warwick and Weed eases that where a deed conveys by specific field notes land abutting on a street or public highway or railroad right of way, it conveys title to the property to the center of the street, public highway, or railroad right of way; and such rule is not overcome even though the field notes describing the land stop at the side line of the street, public highway, or railroad right of way, unless a contrary intention is expressed in plain and unequivocal terms.’ ” Since the contract provided in plain and unambiguous language that the street at the point in question was to remain open and the boundaries thereof were expressly determined and fixed by the building of the curb line, the conveyance from the Lacys to Crawford, as above related, brings this factual situation within the rule announced by our Supreme Court in the foregoing cases, and the application of. the rule is not in conflict but in complete accord with the provision in the settlement agreement that the street at the point in question will be kept open. That leads me to say again that Crawford had the right to use the street in question at the -point in question, and in the absence of damage from negligence in such use he was not guilty of a trespass as a matter of law. Nor do I think that this view is in conflict with the judgment in the 54th District Court confirming the replatting of the property and quieting the title to the property in the Lacys, because all of the streets in the old Dean Addition were closed and abandoned save and except this portion of old North 33rd Street and the change that was made with reference to Pine Avenue, and it was necessary for the title to be vested in some one. Nor is it in conflict with the provision that no buildings were to be placed in the street. In this connection we think it is pertinent to keep in mind that Crawford in his suit that was under settlement was contending that the Lacys had invaded his rights by encroachments on the street and constructing buildings thereon. If it had been the intention of the parties that North 33rd Street at the place in question was to be kept open “as an unobstructed place, as land without trees or obstruction”, as is the view of the majority opinion, such view was not tendered by the pleadings at the time the settlement agreement was entered, nor was such issue tendered by :the pleadings in this cause, nor was there any testimony tendered to such effect. My view is that the construction placed upon this matter -by the majority opinion violates the clear and express terms of the contract and engrafts upon it a construction which was not in the minds of any of the parties at the time they entered into the contract, and violates the rules of construction announced by our Supreme Court in the cases above cited. The contract between the parties is clear that all of the other streets and alleys and the old Speegleville Road were to be closed and abandoned, but that portion of North 33rd Street under consideration here was to be kept open and there was no restriction or limitation in the contract on the word “open.” The primary meaning of *92this word, used in connection with the street and the subject matter of the settlement agreement, is so well known and so thoroughly understood that an inferior meaning cannot 'be engrafted upon it. By the same reasoning the majority could hold that it was the intention of the parties that the street would be kept open as a park. The majority opinion inquires: “Why should such area be referred to as formerly part of North 33rd Street if it was to remain open as a street?” I think the answer to the question is obvious because it was only for the purpose of description and the location of the street at the point in question remained exactly as it was before the replatting of the property, and the contract provided that it be kept open.
Evidence was tendered to the effect that Crawford went upon that part of North 33rd Street that was to be kept open and did some repair work on the street for the purpose of allaying the dust. My view is that Crawford had a right to go in and upon that part of the street at will, and it necessarily follows that in doing so, absent negligent conduct, he was not guilty of a trespass, and the evidence did not tender such issue. If I be mistaken in this behalf, then the court did not have the authority to withdraw this issue from the jury.
Appellants’ third point is: “The court erred in defining the point of proximity of structures on Lots 9, 10 and 11 in Hill-crest Annex Addition (Block 42, Dean’s Addition) as the east line of the store-building.of the plaintiff. I think this contention should be sustained. The line to which the building in Block 42 could be extended with respect to Pine Street was definitely fixed in the settlement agreement. As I understand this record, there is no contention by either party to this suit that the settlement agreement is ambiguous as to this line, nor as to the limitations placed on the construction of buildings on 33rd Street between Blocks 41 and 42, nor as to the type of structure that can be built on any part of Block 42; and since no issue was tendered by the pleadings as to the ambiguity with reference to these matters, and since no testimony was tendered to the effect that the field notes in the settlement agreement were ambiguous or erroneous, no justiciable controversy was presented as to this phase of the case, and, by reason thereof, I think the trial court was therefore without any authority to> place any construction upon the same contra to the settlement agreement, and his action,, insofar as it modifies or changes the decree-entered in the 54th District Court, should be reversed and rendered.
Accordingly, it is my view that Crawford was not guilty of a trespass as a matter of law, and I therefore respectfully enter my dissent.