**August** 25; **1952**

Hon. Cullen B. Vance OpinionNo. V-1510 CountyAttorney JacksonCounty Re: Authority of Jackson Edna, Texas County to sell the present courthouseproperty under the suljmltted Dear Sir: facts.

Your request for our opinionreads in part as follows:

"I am enclosing copy of a Deed dated December 19, 1904, from the New York, Texas and MexicanRailway Company to Jackson County.conveying a plot of ground 240 feet by 400 feet for Cowthouse~purposee. Jackson.Countyerected a Courthousebuilding on this plot of ground In 1905 at a cost ln~excess of $2O,,OOOiO,O aiidconstructed of brick within the requirements of this Deed. This bui1ding.U approximately 52-l/6 feetby 85- 5/6 feet, outside dimensions. "Accordingto Affidavits that I have procured from several individualswho have' been acquaintedwith this property for a great many years, the plot of ground on which the Courthouse ,butldlng,is situatedhas 'been used for the following otherpurposes:,

"Apublic fountain is maintained In front of the Courthouseand rest rooms open 24 hours a day are provided in a separqte building for the~uae of,thepublic. The plot of ground has been landscaped,a rose garden and other shrubbery are maintained thereon, and some 30 years ago approximately 25 or 30 Hackberry and Pecan treeswere planted that
now provide considerable shade. Benches have been maintained on this ground for the use by members of the public and the ground has been used for holding politicalrallie$, church sales and bazaars,preaching services,Hon. CullenB. Vance, p g a e 2 (V-1510)

club carnivals,public fairs and exhibitions, band concerts, chautauquas,public barbecues, and duringmore recent years athletic and pep rallles and an annual firemen'spublic Chrlstmas tree have been held. There are two monuments on this gro,und,' one erected to the memory of~Irvln ,MooreLaughter,who was killed while in naval-service In 1916, the monumenthaving been erected in about 1917, and the other a centennial marker or monument erectedby the State of Texas in 1936. The entire plot of ground Is surroundedby public streets. Since the Courthousewas erected thereon, the plot of ground has been used by various organizations and members of the public for public gatherings and as a publicmeeting place and has been the only place provided in the City of Edna during all of theseyears as a public meeting place for all members of the publicwithout regard to race, creed or religious affiliation. According to these affidavits, this plot of ground has been referred to and mentioned as "TheCourthouse Lawn" and also as "TheCourthouse Square". It is located right In the heart of the business dlstrlct of the City of Edna. In addition to the above, the benches and lawn on this plot of ground have been used by the public generally as a place of enjoyment and rest.
'Basedon theforegoing fact situation, I should appreciate an opinion fromyour Department as to whether or not JacksonCounty could sell this property should the Courthouse be located on anotherplot of ground some two blocks away."
The deed of conveyance to JacksonCounty contained the following:

"This entire conveyance,however, is based upon this express condition subsequent, to say: That if the said County of Jackson shall fall to cause to be erected and completed upon sald.above conveyedproperty a courthouse for JacksonCounty to cost not less than Twenty Thousand ($20,000.00)Dollars, and the .outerwalls of which shall be brick or stone,within the space of three. .-
_

Hon. Cullen B. Vance, page 3 (V-1510)

years from~the date '0fthi.s ~deed,then this conveyances

shall,become:nuU and void, and all the titles

conveyed~,by'the

present deed shall at once'revertupon such default3 as aforesaid, to the New York Texas and;,Mexlcan Railway Company, and Its successors.
However, sinc'ethe conditionwaspcompliedwith there is no impedimentagainst the sale of the property in this respect.

We agreewith you that the question concerning the sale of the property and the changing the location of the courthouse could be controlledby the holding in the case of City of Tyler v. Smith County 246 S.W.2d 601, 605 (Tex.Sup. 19521, where.lnIt Is stated:

'Therewas never:any-express~dedicatlon ,ofthe square in controversyasa ptibl&.c square, so our problem Is to determinewhether the record shows,a dedicationby implication,which is said'tobe analo ous to the dpctrlne of estoppel Ina. 28 C.J.S Dedication 8.2, p. 507 In or.der to esiibllsh' such a dedication theremust have been a clear and unequivocal Intention on the part of Smith County to devote the square to public use and acceptanceby the public. Oswald v. Grenet, supra. We have concluded that such dedication Is shown In this case.
II

. . . "Therecan be no doubt that’the public accepted the dedication.'They ,usedit as,a market place, as a 'parking place, as'a:place for entertainmentand rest, asaplaceefor preaching services and polltlcalmeetfngs,
as a place to getwater for themselves and their stock, ,andaccording to undisputed testimony; they use It today as a 'placeof enjoyment and rest', 'toenjoy the roses, shrubbery and various landscapingthat has been put there.' According to the weight of authority, this establishesacceptance, and,
we so hold. 16 Am.~Jur.,Dedication, Sec. 35, P.-383.
,,_,.- .

Hon. Cullen B. Vance,page 4 (V-1510)

“Under these undisputed facts evidencing dedlcatinn and after more than a century of unquestionedgeneral public use following sxid accepting such dedication, it cannot justly be saidt&atSmith County can now convert the square to private use. Of course, the county may abandon the present square as a site for
a courthouse and build a new courthousewherever it chooses; but If It elects to do that, the entire squaremust remain Impressedwith the right of the public to use it for general public purposes; it cannot be diverted to private uses. Lamar County v. Clements, 49 Tex. 347, supra.”

In Attly Gen. Op.V-1474 (1952) It was held that land dedicated to the public for park purposes could not be diverted for any other use, stating that It must remain For the use of the public for park purposes and cannot thereforebe sold or exchanged.

In conneatlonwith the above your attention is directed to the fact that the City of Tyler case was based upon facts which were unconkroverted. We do not feeljustified In assuming that there are no other Facts which might be developedwith regard to the intentions to dedicate. Therefore, the answer to your question Is dependent upon all the factswhich might,laterbe developed and the application of the law as stated In this ,oplnion.

SUMMARY

Where there is a dedication and acceptance OF a courtho,use site for public
use. it cannot be diverted to vrlvate use. City of Tyler v. Smith County,-246 S.W.2d ijO1(Tex. Sup. 1952)

. Yours very truly,

APPROVED:
J. C. Davis, Jr. County Affqlra Division

E. Jacobson Reviewing Assistant PRICE DANIEL Attorney General

Charles D. Mathews First As&&ant Assistant

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