August 25; 1952 

Hon. Cullen B. Vance Opinion No. V-1510 

County Attorney 

Jackson County Re: Authority of Jackson 

Edna, Texas County to sell the present courthouse property 

under the suljmltted 

Dear Sir: facts. 

Your request for our opinion reads in part as 

follows: 

"I am enclosing copy of a Deed dated 

December 19, 1904, from the New York, Texas 

and Mexican Railway Company to Jackson 

County. conveying a plot of ground 240 feet 

by 400 feet for Cowthouse~purposee. Jackson.County erected a Courthouse building on 

this plot of ground In 1905 at a cost ln~excess of $2O,,OOOiO,O aiid constructed of brick 

within the requirements of this Deed. This 

bui1ding.U approximately 52-l/6 feetby 85- 

5/6 feet, outside dimensions. 

"According to Affidavits that I have 

procured from several individuals who have' 

been acquainted with this property for a 

great many years, the plot of ground on which 

the Courthouse ,butldlng,is situated has 'been 

used for the following other purposes:, 

"A public fountain is maintained In 

front of the Courthouse and rest rooms open 

24 hours a day are provided in a separqte 

building for the~uae of,the public. 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 trees were 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 political rallie$, 

church sales and bazaars, preaching services, 
Hon. Cullen B. Vance, p a g e 2 (V-1510) 

club carnivals, public fairs and exhibitions, 

band concerts, chautauquas, public barbecues, 

and during more recent years athletic and pep 

rallles and an annual firemen's public Chrlstmas tree have been held. There are two monuments on this gro,und,' one erected to the memory 

of~Irvln ,Moore Laughter, who was killed while 

in naval-service In 1916, the monument having 

been erected in about 1917, and the other a 

centennial marker or monument erected by the 

State of Texas in 1936. The entire plot of 

ground Is surrounded by public streets. Since 

the Courthouse was erected thereon, the plot 

of ground has been used by various organizations and members of the public for public 

gatherings and as a public meeting place and 

has been the only place provided in the City 

of Edna during all of these years as a public meeting place for all members of the 

public without regard to race, creed or religious affiliation. According to these affidavits, this plot of ground has been referred 

to and mentioned as "The Courthouse Lawn" and 

also as "The Courthouse 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. 

'Based on the foregoing fact situation, 

I should appreciate an opinion from your Department as to whether or not Jackson County 

could sell this property should the Courthouse be located on another plot of ground 

some two blocks away." 

The deed of conveyance to Jackson County 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 conveyed property a 

courthouse for Jackson County to cost not 

less than Twenty Thousand ($20,000.00) Dollars, and the .outer walls 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'revert upon such default 3 as 

aforesaid, to the New York Texas and;,Mexlcan 

Railway Company, and Its successors. 

However, sinc'e the condition wasp complied with 

there is no impediment against the sale of the property 

in this respect. 

We agree with you that the question concerning 

the sale of the property and the changing the location 

of the courthouse could be controlled by the holding in 

the case of City of Tyler v. Smith County 246 S.W.2d 

601, 605 (Tex. Sup. 19521, where.ln It Is stated: 

'There was never:any-express ~dedicatlon ,of the square in controversy asa ptibl&.c 

square, so our problem Is to determine whether the record shows,a dedication by implication, which is said'to be analo ous to the 

dpctrlne of estoppel In a. 28 C.J.S 

Dedication 8.2, p. 507 In or.der to esiibllsh' 

such a dedication there must have been a 

clear and unequivocal Intention on the part 

of Smith County to devote the square to 

public use and acceptance by the public. 

Oswald v. Grenet, supra. We have concluded 

that such dedication Is shown In this case. 

II . . . 

"There can be no doubt that’ the public 

accepted the dedication.' They ,used it as, a 

market place, as a 'parking place, as'a:place 

for entertainment and rest, as aplaceefor 

preaching services and polltlcalmeetfngs, 

as a place to getwater for themselves and 

their stock, ,and according to undisputed 

testimony; they use It today as a 'place of 

enjoyment and rest', 'to enjoy the roses, 

shrubbery and various landscaping that has 

been put there.' According to the weight of 

authority, this establishes acceptance, 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 

unquestioned general public use following sxid 

accepting such dedication, it cannot justly 

be said t&at Smith 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 courthouse wherever it chooses; but If It elects to do that, 

the entire square must remain Impressed with 

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 therefore be sold or exchanged. 

In conneatlon with 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 

feel justified In assuming that there are no other Facts 

which might be developed with regard to the intentions 

to dedicate. Therefore, the answer to your question Is 

dependent upon all the facts which might,later be 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 

BA:am