author: STEAKLEY, Justice. SMITH, Justice

text:
    T. D. ANDERSON et al., Petitioners, v. TALL TIMBERS CORPORATION et al., Respondents.
    No. A-9817.
    Supreme Court of Texas.
    March 4, 1964.
    Rehearing Denied and Dissenting Opinion Filed April 29, 1964.

      Baker, Botts, Shepherd & Coates, Homer L. Bruce, Thomas M. Phillips, James P» Lee and Robert J. Malinak, Houston, R. H. Burks, City Atty., Houston, Homer T„ Bouldin, Asst. City Atty., for petitioners^
    George A. Hill, O. J. Cadwallader, Houston, for respondents.

      . All emphasis added.

   STEAKLEY, Justice.

This suit was instituted by T. D. Anderson and others, petitioners here, as residents and home owners in Tall Timbers-Subdivision of River Oaks Addition to the City of Houston. It was against Tali' Timbers Corporation, a Respondent here-River Oaks Corporation, an intervenor below in support of Tall Timbers Corporation, is also a Respondent here. The purpose of the suit was to enjoin the opening' as a public street of an area shown on the original subdivision plat as a forty foot easement. The background facts will be briefly stated.

River Oaks Corporation established Tall Timbers Subdivision of the River Oaks Addition in 1939. It authenticated and' placed of record a plat entitled “Plat of Tall Timbers Section, River Oaks Addition,, a Section West of the City of Houston” 7 it also executed and placed of record a document entitled “Reservations, Restrictions and Covenants in Tall Timbers Section of River Oaks.” The area in controversy was depicted on the plat as an enclosed strip entirely within the subdivision. It was bounded on all sides by solid lines and was marked “W Easement.” As shown on the plat the area is between Olympia Drive and Westlane on the east, and a southwest reserved tract of approximately six acres, expressly excluded from the subdivision, on the west; and between Lot 1 of Block 88 of the subdivision on the south, and Lot 1 of Block 91 of the sub-división on the north. It is undisputed that the area has never been used as a public street.

The excluded southwest reserved tract was sold by River Oaks Corporation to Tall Timbers Corporation in 1959. It is not subject to any of the restrictions of the adjoining subdivision. There is no claim that in connection with the sale it was represented to Tall Timbers Corporation that the easement area in question was originally dedicated to public use as a street. The reserved tract abuts on San Felipe Road, a main traffic artery in this section of Houston. Subsequent to the purchase, Tall Timbers Corporation constructed an 147-unit apartment project on the reserved tract and thereafter set about to open a public street over the forty foot easement area in controversy. Its purpose was to provide its tenants, and thus the general public, with a street between the apartments and the interior subdivision streets of Olympia Drive, Del Monte Drive, Westlane, Inverness Drive and Willowick Road. This suit resulted.

The controversy has been the subject of three prior appellate decisions. The original suit was filed on October 20, 1959. After hearing, the trial court granted a temporary injunction against the building of the street, pending a trial on the merits. The temporary injunction order was appealed by Respondents and the Houston Court of Civil Appeals ordered the temporary injunction dissolved. Tall Timbers Corporation v. Anderson et al., 342 S.W.2d 452. We reversed the judgment of the Court of Civil Appeals, holding that the trial judge did not abuse his discretion in granting the temporary injunction to preserve the status quo until the case could be tried on its merits. 162 Tex. 450, 347 S.W.2d 592. Neither the majority nor the dissenting opinion of this Court purported to write upon the merits of the case. The majority opinion expressly disclaimed that we were doing so; the dissenting opinion argued that we should do so.

The instant appeal is from the subsequent judgment of the trial court granting the motion of Anderson and others, Petitioners here, for summary judgment. The Fort Worth Court of Civil Appeals, to which the case had been assigned in the docket equalization process, concurred with the previous opinion of the Houston Court of Civil Appeals, reversed the judgment of the trial court, and, in effect, rendered judgment for Respondents. 370 S.W.2d 214.

We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court. Our disagreement is with the initial and basic holding of the Court of Civil Appeals that “[t]he plat of Tall Timbers Section shows on its face a legal dedication of the south 40 ft. easement for a public way.” This is the essential position of Respondents. Our conclusion to the contrary is that the plat does not purport to dedicate the easement area to the public to be used as a street. The tract was designated only as an easement and the easements on the plat were not dedicated to public-use.

The plat is reproduced in the opinion of the Houston Court of Civil Appeals in 342 S.W.2d at pages 456 and 457. As relevant here, the plat has three types of designations on its face: open areas constituting the interior subdivision streets; ten foot areas designated for utilities; and two areas, one in controversy here, marked “4O' Easement.” Appearing on the face of the plat is the following recitation:

“We, Hugh Potter and O. J. Cad-wallader, President and Secretary, respectively of River Oaks Corporation, owner of the property subdivided on this plat of Tall Timbers Section of River Oaks Addition, do hereby make subdivision of said property for and in behalf of said River Oaks Corporation, according to the streets, lanes and tracts shown hereon, and designate said subdivision as Tall Timbers Section of River Oaks Addition in the A. C. Reynolds League in Harris County, Texas, and in behalf of River Oaks Corporation dedicate to the present and future owners of said property, and to the public, the use of the streets shown hereon.”

The only dedication expressed on the face of the plat was the use of the streets shown thereon; there was no dedication of any other area or tract shown on the plat, whether designated for utilities or as easements. The reference in the words of dedication to the streets shown on the plat obviously refer to the open areas identified as Olympia Drive, Del Monte Drive, In-verness Drive, Westlane and Willowick Road. The strip in question, in contrast to the open areas constituting the streets of the subdivision, was reserved as an easement. It is fully enclosed by solid lines and could not constitute an east-west means of egress and ingress between any lots or blocks of the subdivision; the west end of the strip abutted on a reserved tract which was expressly excluded from the subdivision.

We look also to the contemporaneously executed and recorded document entitled “Reservations, Restrictions and Covenants in Tall Timbers Section of River Oaks,” to further ascertain the legal effect of the reservation of the forty foot easement. Referring to the recorded plat, this document recited that “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 Reservations, Restrictions, and Covenants herein contained. * * * It will be noted that River Oaks Corporation limited even its dedication of the streets, drives, lanes and roads shown on the plat. The reservations were as follows:

“RESERVATIONS
“That in so authenticating said map for record and in so dedicating the streets, drives, lanes and roads to the use of the present and future owners of said property and to the public, there shall be and are hereby reserved in RIVER OAKS, the following rights, title and easements, which reservations shall be referred to and made a part of, and construed as being adopted in, each and every contract, deed or other conveyance, executed or to be executed by or on behalf of RIVER OAKS, conveying said property or any part thereof :
“(1) The legal fee simple title in and to each and all of the several streets, drives, lanes and roads, as. shown on said map or plat, is hereby reserved in RIVER OAKS, subject to the limited dedications herein expressed.
“(2) RIVER OAKS reserves the exclusive right to operate a system or systems of transportation in, over, upon,, along and under said streets, drives, lanes and roads, and to erect and maintain therein and thereon wires and poles for the purpose of constructing and maintaining a system of electric light, power, telegraph and telephone line or lines and connections; and to construct, lay and maintain in, along and under any and all of said streets, drives, lanes and roads, and along easements provided therefor, all pipes, conduits and ditches necessary and proper for the construction and maintenance of a system of drainage and a system of sewerage, and for the supply of water, gas, light and power, telegraph and telephone service to said area and inhabitants thereof, and for all other purposes incident to the development and use of said property as a suburban home community; but no obligation rests upon RIVER OAKS to install any of the above described utilities, or any other utilities, it being contemplated that this section of RIVER OAKS is to be used for suburban homes, and the usual accessory uses, and the above described rights being reserved only for the purpose of facilitating the installation of such utilities, should it ever become the desire of the future owners of said property so to do.
.“(3) RIVER OAKS reserves the necessary easements and rights of way for the purpose of constructing, maintaining and repairing a system or systems of light, electric power, telegraph and telephone line or lines, gas, sewers, or any other utility across said lots and blocks in said Tall Timbers Section, as shown on aforesaid map to be hereafter recorded in the Harris County Map Records (to which map and record reference is here made) in addition to the reservations enumerated in the preceding paragraph, but no obligation rests ■upon RIVER OAKS to install any of the above described utilities or any other utilities, it being contemplated that this Section of River Oaks is to be used for suburban homes, and the usual accessory uses, and the above described rights being reserved only for the purpose of facilitating the installation of such utilities should it ever become the desire of the future owners of said property so to do.
“(4) RIVER OAKS reserves the right to make minor changes in and additions to the above easements for the purpose of enabling utilities to be installed more efficiently, should installation thereof ever be made.
“(5) Neither RIVER OAKS nor any utility company using the easements or other rights of way herein referred to shall be liable for any damages done by either of them, or their assigns, agents, employees or servants, to shrubbery, trees, flowers . or other property of any owner situated on the land covered by said easements or adjacent to said rights of way.’’

The Restrictions and Covenants are, in part, as follows:

“RESTRICTIONS
“For the purpose of creating and carrying out a uniform plan for the parceling and sale of said Tall Timbers Section, and the lots, blocks and other tracts of land therein contained, as a district set aside for suburban homes and the uses ordinarily accessory thereto, the following restrictions upon the use of said property are hereby established * *
* * ijt * * *
“(2) This property shall be used for single-family residence purposes only, and this shall be interpreted to exclude hospitals, duplex houses, apartment houses, multiple family houses of any kind. * * *
“(3) Only one single-family residence, and its usual accessories, shall be constructed or permitted on each lot or separate parcel of land. * * *
“(4) No residence, garage, outhouse or other permanent structure shall be erected nearer than fifty (SO) feet to the property line on Willowiclc Road, Inverness Drive, Del Monte Drive, or Westlane * *

Three dominant purposes are apparent in the subdivision plat and the related document of Reservations, Restrictions and Covenants: first, the dedication to the present and future owners of the lots in the subdivision, and to the public, was expressly limited to the use of the streets shown on the subdivision plat and there was no dedication of the easement areas shown on the plat; second, the subdivision was to constitute and be preserved as a district set aside for suburban homes, with the use of “the lots, blocks and other tracts of land therein contained” restricted to “the uses ordinarily accessory” to a suburban home subdivision; and, third, River Oaks Corporation reserved the exclusive right to con■struct and maintain facilities required for the furnishing of utilities to the residents ■of the subdivision if it should elect to do so. As to the latter, River Oaks Corporation went to great lengths to preserve these exclusive rights. The dedication of the streets, drives, lanes and roads was further limited by the reservation of fee simple title and of the exclusive right to operate a system of transportation and to erect and maintain utility wires and poles. Various strips were also expressly reserved for utility purposes. It was this dominant purpose of River Oaks Corporation which also found expression in the specific exclusion of any dedication to the public other than the use of the streets shown on the subdivision plat.

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 easement area in controversy carried a dedication as a public street.

This Court in Oswald v. Grenet, IS Tex. 118, denied a dedication for a public use upon the holding that “there was no evidence of the ground having been used as a common, and nothing showing for what it was designed. * * * Had the lots been sold by deed referring to it as a common, or had it been long used as such without the assertion of a private right by the owner * * * it might have been regarded as a common.”

In the second appeal a verdict sustaining a dedication to the public was upheld by this Court. Oswald v. Grenet, 22 Tex. 94. Both Courts of Civil Appeals regarded this decision as controlling the case at bar. But it was found by this Court that the supporting evidence met the following test:

“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.”

Also, the space on the map of the addition before the Court in Oswald was unmarked and undesignated, and the decision was rested upon the “peculiar situation and form” of the unmarked space which gave rise to the natural inference that the space was intended to remain open for public use, together with the finding by the Court “that the acts and declarations of the proprietor were such as to create this expectation, is indisputably established by the concurrent testimony of all the witnesses.”

Martinez v. City of Dallas, 102 Tex. 54, 109 S.W. 287, 102 Tex. 54, 113 S.W. 1167, was also cited by the Courts of Civil Appeals. This case involved a strip shown on the plat recorded in 1884 as opening on designated streets. The opinion also recited the fact that the strip had been open and used by pedestrians as a common way. The holding upon the authority of Oswald was that the recorded map clearly indicated that the strip was intended as a street or as an open way reserved for public use. Maisen v. Maxey, Tex.Civ.App., 233 S.W.2d 309, wr. ref., n. r. e., also citing Oswald, upheld as a park an area marked on the subdivision map as “Terraced Park Area.” There was both an express dedication of the public ways and easements shown on the map and direct evidence that the lots had been sold upon the representation that the area was to be a dedicated park.

Similarly, the decision in Manziel v. Railroad Commission, Tex.Civ.App., 197 S.W.2d 490, wr. ref., rested, in large part, upon the fact that the 20-foot strips in question “were connected with the street on one end and the-alley on the other, with no line of division between” ; it was held that the strips were intended as passageways between the central street and the alleys for the benefit of the lot purchasers.

In City of Brownsville v. West, Tex.Civ.App., 149 S.W.2d 1034, wr. dism., the Court held that the plat there involved did not show a clear and unequivocal present intention of dedication to the public of a parcel of land marked upon the plat as “Proposed Park.” The Court reasoned as follows:

“In the first place, there is a statement on the plat expressly dedicating all streets, roads and alleys shown on the plot, but no mention is made of the ‘Proposed Park.’ It would seem that the rule ‘expressio unius est exclusio alterius’ should be here applied. The fact that the streets, roads and alleys are expressly dedicated, would exclude the idea that the ‘Proposed Parks’ were also dedicated.”

To the same effect is the decision in Pudge v. Hogge, Tex.Civ.App., 323 S.W.2d 663, no wr. hist. The Court was influenced by the fact that “ * * * [t]he dedicatory words ex;pressly provide that the streets, alleys and easements shown on the plat shall be dedicated to the public use forever. But the lakesite is not mentioned. Omission of the lakesite from the words of dedication must be construed under the circumstances to mean that the lakesite was excluded from the dedication.”

In City of Atlanta v. Texas and Pacific Railway Co., 56 Tex.Civ.App. 226, 120 S.W. 923, wr. ref., the Court concluded against a dedication to public use upon the reasoning that “ * * * If the open lines at Common Street indicated an intent to dedicate a continuous street, the closed space at what would otherwise be the junction points of the other streets evidently evinced the absence of any such intention [to dedicate to public use] on the part of the railway company as to the latter streets. It also appears from the map that the railway company intended to reserve this strip inclosed between the lines on the east and west sides of its track for railway purposes. This is made evident by the words, ‘Reserved for railway purposes,’ written thereon.”

We observe, also, that the easement area here in controversy was a tract of land “therein contained,” i. e., in the subdivision, within the specific language of the document of Reservations, and its use, as well as the use of the lots, blocks, and other tracts of land in the subdivision, was expressly restricted to the uses ordinarily accessory thereto. It cannot be seriously contended that the conversion of the easement tract into a public street running between the apartments constructed on the excluded reserved tract, and the interior streets of the subdivision, would be a use ordinarily accessory to this section of River Oaks which had been set aside as a district for suburban homes. .

The most, then, that could be said is that the easement reservation is subject to a use not contrary to the express and implied limitations embodied in the subdivision plat and the document of Reservations; or, that the easement was subject to such use as River Oaks Corporation might have desired had it elected to furnish utility services. As an example of the first, the subdivision plat shows another forty foot easement area which is located between the interior subdivision streets and a northwest reserved tract. In the course of time River Oaks Corporation sold this reserved tract for use as a residence and subject to the Reservations, Restrictions and Covenants applicable to all of the lots and tracts in the subdivision; in effect, the northwest reserved tract was thereby brought into and made a part of the subdivision. This easement has been used by the owner of the residence as a private driveway between his home and the subdivision streets. In contrast to the southwest reserved tract, which abuts on and hence has access to San Felipe Road, the northwest tract is surrounded by the Buffalo River, by a railroad track and roadbed and by other lots of the subdivision. It is thus apparent that the use of the easement tract for purposes of egress and ingress between the residence and the subdivision streets, whether based on an express or implied grant or way of necessity, which matters are not before us, would in no event violate the express and implied limitations embodied in the plat and document of Reservations. For further example it can be supposed that River Oaks Corporation actually utilized the easement area in controversy for “pipes, conduits and ditches necessary and proper for the construction and maintenance of a system of drainage and a system of sewerage and for the supply of water, light and power, telegraph and telephone service.” Under such supposed facts it would seem clear that neither the residents of the subdivision, nor the subsequent purchaser of the reserved tract in question, nor the public, could have required River Oaks Corporation to vacate such use and convert the area into a public street.

There remains the question of whether Respondent, Tall Timbers Corporation, possesses any individual right in the easement tract in controversy which will support its use as a private right of way between the apartment tract and the interior subdivision streets for the use and benefit of the apartment tenants. Such a right is an interest in land which can only be conveyed by a grant. It is subject to the Statute of Frauds and the Statute of Conveyances and generally must be conveyed in writing. City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477, 478, 44 S.W. 476. As exceptions to the rule there are implied easements appurtenant, easements by estoppel in pais, and easements by public dedication. Drye v. Eagle Rock Ranch, Inc., Tex., 364 S.W.2d 196.

There was no express grant here. The only reference in the deed to the easement tract is in the metes and bounds description of the land conveyed, viz., “ * * * Thence in a southerly direction along the west line of an easement 40 feet in width lying between Lot 1 in Block 91 and Lot 1 in Block 88 of Tall Timbers Section a distance of 49.7 feet to the northwest corner of such Lot 1 in Block 88, which corner is marked by an iron pipe, continuing therefrom * * This reference, as well as the reference in the deed to the subdivision plat, was patently for descriptive purposes only. City of Houston v. Cyrus W. Scott Mfg. Co., 45 S.W.2d 270, wr. ref.

Nor was there an implied grant of an easement appurtenant. We said in Eagle Rock that the engraftment of an easement by implication requires that the use be apparent and in existence at the time of the grant; that the use-have been continuous; and that the use be necessary to the use of the dominant estate. These conditions are not present here. With respect to estoppel in pais, there is no claim that the grantors represented to Tall Timbers Corporation in its purchase of the reserved tract that the easement area is or would be a street, or that Tall Timbers Corporation expended any monies in reliance thereon.

It follows that 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 that Tall Timbers Corporation obtained private contract rights thereto in addition to the rights inuring to the public in general. Indeed, Tall Timbers Corporation in its brief states its position in such respect as follows: “When River Oaks Corporation filed the plat of Tall Timbers Section dedicating the South 4<y easement to public use, the public in general acquired a right to the use of such easement. But Respondent acquired an additional right to the use of such easement by reason of its contract of purchase. The two classes of easement, the one inuring to the public in general by the filing of the plat and dedication, and the other inuring to Respondent by reason of its contract of purchase, are separate and distinct rights which may coexist in contemporaneous and harmonious operation and one may he destroyed without necessary impairment of the other.” But the private right so asserted is precluded by our holding in the forepart of this opinion that the easement tract in controversy was not dedicated to public use.

Accordingly, we hold that the easement tract under review was not dedicated as a public street and that there is no individual right in the Respondent, Tall Timbers Corporation, to utilize the tract as a through way between its apartment tract and the interior streets of Tall Timbers Subdivision of River Oaks Addition. Petitioners are therefore entitled to the injunctive relief for which they sue.

The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed.

SMITH, Justice

(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'' «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 site (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 who 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 which 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. Baudat, 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 on 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 that 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.


source: Caselaw Access Project

author: GREENHILL, Justice. GRIFFIN, Justice

license: Public Domain

text:
    Jerry HANKS, Petitioner, v. Joseph N. ROSSER, Respondent.
    No. A-9767.
    Supreme Court of Texas.
    April 22, 1964.

      Stephenson, Stephenson & Thompson, Jim I. Graves, with above firm, Orange, A. A. DeLee, Port Arthur, for petitioner.
    Fred A. Carver, Beaumont, for respondent.
   GREENHILL, Justice.

Joseph Rosser brought suit against Jerry Hanks for services which he alleged he had rendered to Hanks and for which Hanks had agreed to pay him. Hanks was served with process on April 24, 1961. Appearance day was May 16, 1961. Hanks failed to file an answer by May 16, 1961; and on May 25, 1961, Rosser took a default judgment. Hanks is seeking equitable relief from that default judgment. The district court set aside the default judgment, and entered judgment in Hanks’ favor on a cross-action. The Court of Civil Appeals modified the lower court judgment, by reinstating the default judgment but affirming that portion of the judgment allowing Hanks recovery on his cross-action. 369 S.W.2d 643.

Hanks was a full-time independent druggist. He had a relief druggist only once or twice a week. On the same day that Hanks was served with process, he called an attorney, Thomas, and told him of the lawsuit. Thomas advised Hanks to bring the papers to his office and that he would advise him what to do after reading them. Hanks did not go to Thomas’ office, and Thomas never saw the papers. Hanks misplaced the citation. He said they were placed on his prescription counter with his prescriptions and that he just lost them. He never did find them. He thought he had more time in which to answer. As a result, he did not file an answer in time.

Sometime between the day of service of citation and appearance day, Rosser’s attorney conversed about the suit with Thomas, the attorney with whom Hanks had talked. On May 24, 1961, after appearance day, Rosser’s attorney again saw Thomas and told him that appearance day had passed without an answer having been filed by Hanks, and that a default judgment was going to be taken. Thomas explained that he did not represent Hanks, but would inform Hanks of the matter. Thomas called Hanks that same afternoon, and told him that he had better file an answer to avoid "having a default judgment taken against him. Thomas declined to represent Hanks, and recommended another attorney, A. A. DeLee, whose office was in Port Arthur. Hanks telephoned DeLee and made an appointment for the next morning, May 25, 1961. In their meeting in Port Arthur on the morning of May 25, Hanks explained the situation. DeLee immediately telephoned the district clerk’s office in Beaumont and was informed by the clerk that while the suit was ripe for action, no judgment had yet been taken; that nothing had been done except the filing of the petition.

DeLee prepared an answer, which Hanks signed about 4:15 that afternoon. DeLee again called the district clerk, and was informed that still no judgment had been taken. It was too late to drive from Port Arthur to Beaumont and file the answer before the clerk’s office would close for the day; so the answer was not filed until 9:18 the next morning. Again, at the time he filed the answer DeLee asked if a judgment had been taken in the case, and “the person [asked] went back and picked up a file and said, ‘No’.” He also testified that at this time he “was advised by the clerk there that nothing had been done. [So] I filed the answer.” DeLee did not personally examine the file, the docket sheet, or the minutes of the district clerk. In fact, the judge’s civil docket sheet showed that a default judgment had been taken May 25, 1961, and the judgment had been entered on the court minutes that same day.

DeLee sent a copy of the answer to Ros-ser’s attorney, who stipulated that he received his copy May 26, 1961, the day it was filed. Rosser’s counsel did not inform De-Lee that judgment had been taken. Neither party took any further action until about July 18, 1961, when Rosser had an execution on the default judgment issued by the district court. The execution was delivered to the sheriff for proper levy and sale of Hanks’ property, all of his interest in the drug store and its contents. This was the first that Hanks or his attorney heard of the May 25, 1961, default judgment.

Hanks’ counsel promptly sought equitable relief. He brought to the district court a plea for equitable relief based on contentions that he was not negligent in failing to file timely answer to Rosser’s petition; that he did not file a motion for new trial only because he relied on false information given to him by the district clerk, that he had a meritorious defense to the lawsuit, and that the granting of this equitable relief would be in keeping with justice and would cause no undue delay or prejudice to Rosser. The district court agreed with his position and, setting aside the default judgment, granted him a trial on the merits.

In the trial on the merits, Hanks’ defense was sustained so that Rosser recovered nothing, and Hanks recovered on his cross-action $1,000 plus interest. The Court of Civil Appeals found that the facts “would perhaps be sufficient to establish that ap-pellee [Hanks] had not failed to use due diligence in availing himself of all adequate remedies at law to prevent the judgment from becoming final. That is to say, that in reliance upon such information, he was justified in not having timely filed motion for new trial prior to his petition for Bill of Review.” 369 S.W.2d at 643. That court further stated that it recognized that “the record unquestionably reflects that a grave -injustice will result to appellee [Hanks].” Nevertheless, the court, with one justice dissenting, held that it had no alternative but to reinstate the default judgment. 369 S.W.2d at 646.

Relief by bill of review is made available in this state by Rule 329b(5) of the Texas Rules of Civil Procedure. The rule does not prescribe the standards by which the actions of a defaulting party must be measured except to say that the bill must be “for sufficient cause” and be “filed within the time allowed by law.” This bill, beyond question, was filed within the time allowed by law. The question is whether “sufficient cause” existed.

Since the rule does not attempt to specify what “sufficient cause” is, the courts have done so in particular cases. A bill of review proceeding is an equitable one designed to prevent manifest injustice. But while manifest injustice to the defaulting party is a material consideration, another is the necessity for there being finality to judgments. The litigating parties arc entitled to know when the contest is at an end; and others, including title examiners and purchasers and sellers of land and interests in land have a need for knowledge as to whether or not litigation involving title to land has been finally concluded.

The general rules’ on the granting of a bill of review.are set out in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). .This Court there said that before a litigant can successfully set aside a final judgment, he must allege and prove, within the time allowed, (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence on his own part.

.The litigant in Hagedorn attempted to rely upon the alleged promise of the clerk of the court to inform him as to when to return to court to defend the suit. The clerk failed to inform Hagedorn, and a default judgment was rendered against him. After an extensive review of the authorities within and without this state, the Court held that this act (or failure to act) on the part of the clerk was not part of his official duties, and that Hagedorn was not entitled to a bill of review under those circumstances.

This Court in Hagedorn, however, went to some length to distinguish cases where parties or their counsel had relied upon official acts of officers of the Court. After quoting from American Jurisprudence, this Court stated:

“It is his [the clerk’s] official duty to know when sessions of the court will be held, what class of business will or will not be' disposed of at a given time and what his office records show with respect to pending litigation; therefore when he gives an inquiring litigant the wrong information within that field the litigant is not at fault.” [Emphasis added.]

In Hagedorn, there was no fault of the opposite party, his counsel, or of an officer of the court in the performance of his official duties.

The trial court here found that Hanks was not negligent in failing to file an answer because of his having misplaced the citation, and that the default judgment was not. caused by his negligence. It will be here assumed that, viewing the matter under bill of review standards, there is no evidence to support these findings, and that Hanks was negligent as a matter of law. This negligence, however, was in failing to file an answer in time, not in his failure to timely file a motion for new trial.

Under the law, Hanks had two rights or remedies: (1) to file an answer to prevent a default judgment, and (2) to file a motion for new trial within ten days after the judgment was taken. Rule 329b (1), Tex.Rules Civ.Proc.

Since there was a reliance on the- erroneous official information given by the clerk, it was unnecessary for Hanks to show, as was required under other circumstances in-Hagedorn, that he was prevented from filing his motion for new trial because of some accident, fraud, or wrongful act of the opposing party.

Here, because of the incorrect information given by the clerk, within his official duties as set out in Hagedorn, Hanks was misled, and filed an answer instead of a mo-, tion for new trial. The Court of Civil Appeals, nevertheless, reversed this cause because it found that Hanks, by bill of review standards as contrasted with those required in an ordinary motion for new trial, was negligent in failing to file an answer. Compare Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939) to Johnson v. Templeton, 60 Tex. 238 (1883). As we view the case, this was not of controlling importance. Assuming that to be true, Hanks was nevertheless entitled to file a motion for new trial.

The controlling facts under these circumstances are: (1) whether the failure to file the answer was either intentional or the result of conscious indifference. Craddock v. Sunshine Bus Lines, supra; (2) whether Hanks was misinformed by the clerk within the time for filing the motion for new trial, and (3) was thus prevented from filing, or misled into not filing, his motion in time; (4) whether Hanks had a meritorious defense; and (5) whether the plaintiff Rosser would not he caused to suffer injury by the granting of the bill of review.

Accordingly, we hold, within the spirit of the Hagedorn opinion, and assuming that the failure to file an answer is not intentional or the result of conscious indifference, that if a litigant is misled or prevented from filing a motion for new trial by misinformation of an officer of the court, acting within his official duties, and this misinformation is given to the party or his counsel within the ten-day period for filing the motion for new trial so as to bring about the failure to file a motion for new trial in time, the trial court, upon finding that the party has a meritorious defense and that no injury will result to the opposite party, may grant the bill of review.

We shall look again at the evidence to determine, if we can, whether, under these standards, the facts support the judgment of the Court of Civil Appeals; and if not, what judgment this Court should enter.

The bill of review was tried before the court. It was the judgment of the court that the bill of review should be in all things granted. Rosser requested the court to make findings of fact and conclusions of law on the bill of review action. The fact findings which were made are substantially the same as the facts set out herein. The court accepted the testimony of A. A. De-Lee as to the inquiries of the clerk and the answers received by him. The court further found that Rosser’s attorney received a copy of Hanks’ answer the same day it was filed; that he knew that Hanks’ attorney was attempting to protect Hanks’ rights; but Rosser’s attorney stated to the court that he owed no duty to anyone to advise that a default judgment had been taken. The court further found that upon learning that execution had been served, Hanks’ counsel acted immediately and as expeditiously as possible to file the bill of review.

The trial court, in addition to his findings on want of negligence on Hanks’ part in filing the answer, concluded that Hanks had a good defense to the asserted cause of action ; that he had a meritorious defense to the suit, and that upon the trial, the result would be different from that rendered upon the default; and that it would be against the conscience to allow the judgment obtained by Rosser against Hanks to stand.

In the trial upon the merits, it was stipulated that the Statement of Facts in the bill of review hearing would be introduced and the evidence there adduced would be used for all purposes. In addition to that evidence, reviewed above, Hanks gave testimony, as to the arrangement between himself and Rosser whereby Rosser was to do some work for Hanks; that Rosser had not only been paid all that he was due, but had taken money from the venture without authority and had not repaid it. Hanks further testified that Rosser had asked Hanks to lend him $1,000 to pay off some of Ros-ser’s creditors; that Hanks had done so, and had not been repaid. This is the basis of Hanks’ cross-action.

The defendant Rosser, though represented by counsel, offered no evidence either on the bill of review or upon the trial upon the merits, except that he joined with counsel for Hanks in tendering the attorney Thomas as a witness. Thomas’ testimony is undisputed. As to the cross-action, Rosser’s counsel stated, “ * * * we will confess that he [Hanks] has a counter claim. Let the Court’s ruling stand on the basis that he had a successful counter claim for $1,000. All that I ask in this suit is final determination on the merits on the Bill of Review.”

Looking then at the five controlling elements set out above as to the bill of review, we find that the trial court specifically concluded that Hanks had a meritorious defense. The fact findings of the trial court are to the effect that Hanks was misinformed by the clerk within the time for filing a motion for new trial and was thus misled into not filing his motion in time. We construe the opinion of the Court of Civil Appeals to hold in context that there was sufficient evidence to support these findings. In fact, the evidence in this regard is undisputed.

The court found that Hanks was not negligent in failing to file his answer in time, and that the failure to answer was due to accident or mistake. By necessary implication, this means that the trial court was of the opinion that Hanks did not intentionally fail to answer, and that his failure to answer was not caused by conscious indifference.

The remaining element is that Rosser would not be caused to suffer injury by the granting of the motion. He was shown to be in the television repair business under the name of Rosser Electronics. The clear implication is that he was still in the immediate vicinity and could have been in attendance upon the court without substantial inconvenience. There was evidence that Hanks did not owe Rosser the money. Under these circumstances Hanks made out a prima facie case of proving the negative: no injury to Rosser. The burden of going forward shifted to Rosser. There was no evidence that Rosser would have been damaged in any respect by the granting of the bill of review, and no effort was made to introduce any such evidence.-

The only point of error which Rosser brought to the Court of Civil Appeals was that the trial court erred in setting aside the default judgment against Hanks and entering judgment for the defendant Hanks. Rosser does not argue or even suggest in his brief in that court or his reply to the application for writ of error in this Court that any injury to himself was, or would have been, occasioned by the granting of the bill of review. His argument in both courts was as to the negligence of Hanks in failing to file the original answer.

All of the necessary elements set out above, therefore, were fulfilled. Accordingly, we hold that the Court of Civil Appeals erred in reversing the judgment of the trial court in the suit by Rosser against Hanks. Rosser had no other points in the Court of Civil Appeals which could be looked to for the purpose of supporting its judgment, and he has none here.

As to the judgment on Hanks’ cross-action against Rosser, no appeal was perfected. Rosser did file an appeal bond in the trial court, but he had no point of error in the Court of Civil Appeals complaining of the entry of the judgment on the cross-action. And he has no application for writ of error or cross-point in this Court on the matter.

Under these circumstances, it becomes the duty of this Court to enter the judgment which the Court of Civil Appeals should have rendered. Rule 505, Texas Rules of Civil Procedure; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958). Accordingly, the judgment of the Court of Civil Appeals, in so far as it reversed the trial court’s judgment in the suit of Rosser against Hanks is concerned, is reversed and that of the trial court is affirmed. On the cross-action by Hanks against Rosser, the action of the Court of Civil Appeals (in affirming the trial court) is affirmed.

GRIFFIN, Justice

(dissenting).

The law with regard to bills of review as it has existed since the beginning of Texas jurisprudence has been changed by the majority opinion herein.

A bill of review is an equitable proceeding and is so recognized by the majority. Heretofore there has been a clearly recognized distinction between a bill of review and a motion for new trial.

All emphasis herein is supplied by the writer.

As late as 1961, in the case of Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, in a unanimous opinion, this Court held that after the time- prescribed in Rule 329-b, Texas Rules of Civil Procedure, that a judgment should become final, any action of the trial judge was absolutely void, and that a writ of mandamus would be issued, ordering the trial judge to expunge the order.

Also, in 1961, this Court had before it the case of McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, which involved the question whether the trial court, after the expiration of thirty days from the date of judgment and with no motion for new trial being filed, had the power to set aside a default judgment rendered against a party not served with process, and, therefore, the trial court had no jurisdiction over such non-served party. In a unanimous opinion, this Court said:

“Accordingly, we construe the emphasized provision of Rule 329-b to mean that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. Into this category will fall those cases in which a default judgment is asserted to be void for want of service, or of valid service, of process.”
Further this Court said:
“Our construction of the Rule will give a diligent defendant with a meritorious defense every opportunity to protect himself against an unwarranted default judgment.”

In the case at bar, it is undisputed that the defendant in the main suit, Mr. Hanks, was duly and legally served by a legal and proper citation commanding him “to appear by filing a zvritten answer to the plaintiff’s petition, at or before 10:00 o’clock A.M. of the Monday next after the expiration of 20 days after the date of service thereof * * The record shows that was not the first citation served on Hanks, but that there had been at least two other and different suits filed against him and process served on him prior to the service of this citation.

The provision of “to appear by filing a written answer to the plaintiff’s petition” was inserted after this Court’s decision in the Hagedorn case (226 S.W.2d 996) and for the very purpose of preventing those served seeking to justify their not filing a written answer within the time prescribed by law.

In the present case no answer was filed by appearance day plus approximately one week thereafter, and there is no claim made by petitioner Hanks that he was prevented from filing an answer at any time, either before or after appearance day by any action or conduct of plaintiff or his attorney, nor by any conduct, information or action of the clerk’s office until May 25th — which was the ninth day after appearance day.

Further, there is no showing that the information that no judgment had been taken, given by the clerk’s office in answer to the first telephone call made by Hanks’ attorney around 11:00 A.M. was not true and correct. The hour of the taking of the default judgment is not in this record. Even though informed by the clerk that time was ripe for a judgment the morning of May 25th, and even though the name and residence of the plaintiff’s attorney was at that time known, as well as the name of the judge presiding over the court where the action was pending, no effort was made to have the court clerk enter the name of defendant’s attorney on the judge’s trial docket, or to contact plaintiff’s attorney or the trial judge and inform both or either of them that an answer for defendant Hanks was being filed. Any one of the three last above mentioned actions would have prevented the taking of a default judgment, or would have informed defendant that a default judgment had been taken that day.

The law prior to the decision in this case, required in bill of review cases, three very clear, simple, easily understood and universally and unanimously recognized things to exist, viz: (1) a meritorious defense to the cause of action alleged to support the judgment — and for this case we can assume such a defense was pleaded by Hanks, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party — and here there is no contention, allegation by pleading or proof of this requisite and necessary element; (3) unmixed with any fault or negligence of his own. Here the majority has set ¿side this third test and has changed it to read “that the failure to answer [was] not intentional or the result of conscious indifference.”

In connection with the last above test, the majority holds as a matter of law that under all the circumstances of this case, Mr. Hanks misplacing his citation and paying no attention to it was not conscious indifference or intentional failure to answer by appearance day. There is no finding by the trial court to this effect. The findings of the trial court are that Mr. Hanks was not negligent in permitting the default judgment to be taken against him; that Jerry Hanks used due diligence to prevent the judgment being had against him after he learned that the accident or mistake had occurred. It is interesting to note that Mr. Hanks in his testimony swore that he thought he had plenty of time to file an answer — not that when he misplaced the citation, he forgot about the suit. All the findings of the trial court were to the effect that Mr. Hanks was without fault and not negligent, because of losing the citation. Such conduct as misplacing the citation, or forgetting about it, has been held to be negligence prior to this holding. Woods v. Gamboa (Tex.Civ.App., 1950, writ refused, n. r. e.), 229 S.W.2d 1021; Banks v. Crawford (Tex.Civ.App., 1959, writ refused, n. r. e.), 330 S.W.2d 243.

The three requisites to be pleaded and proved as set out in the Hagedorn case were not original with the court in that case. These three requisites were first mentioned in the jurisprudence of this State in the case of Goss v. McClaren, 17 Tex. 107 (1856). See also Plummer v. Power, 29 Tex. 6 (1867); Johnson v. Templeton, 60 Tex. 238 (1883); Nichols v. Dibrell, 61 Tex. 539 (1884) ; Morris v. Edwards, 62 Tex. 205 (1884) ; Buchanan v. Bilger, 64 Tex. 589 (1885) ; Harn v. Phelps, 65 Tex. 592 (1886) ; McMurry v. McMurry, 67 Tex. 665, 4 S.W. 357 (1887); Harris v. Musgrave, 72 Tex. 18, 9 S.W. 90 (1880) ; Merrill v. Roberts, 78 Tex. 28, 14 S.W. 254 (1890); Hammond v. Atlee, 15 Tex.Civ.App. 267, 39 S.W. 600 (1897, writ denied); Ayres v. Parrish, 15 Tex.Civ.App. 541, 40 S.W. 435 (1897, writ denied) ; McCorkle v. Everett, 16 Tex.Civ.App. 552, 41 S.W. 136 (1897, writ denied) ; Wilson v. Smith, 17 Tex.Civ.App. 188, 43 S.W. 1086 (1897, writ dismissed) ; Ames Iron Works v. Chinn, 20 Tex.Civ.App. 382, 49 S.W. 665 (1899, writ dismissed, w. o. j.); Wilson v. Woodward, 54 S.W. 385 (Tex.Civ.App., 1899, n. w. h.) ; Bergstrom v. Kiel, 28 Tex.Civ.App. 532, 67 S.W. 781 (1902, writ denied); Crosby v. Di Palma, 141 S.W. 321 (Tex.Civ.App., 1911, writ denied) ; McCamant v. McCamant, 187 S.W. 1096 (Tex.Civ.App., 1916, n. w. h.); First National Bank of Big Spring v. Hartzog, 192 S.W. 363 (Tex.Civ. App., 1917, n. w. h.) ; Reed & Reed v. McKee, 204 S.W. 717 (Tex.Civ.App., 1918, n. w. h.); Drinkard v. Jenkins, 207 S.W. 353 (Tex.Civ.App., 1918, writ dismd.); Bain v. Coats, 244 S.W. 130 (Com. of App., 1922); Davis v. Cox, 4 S.W.2d 1008 (Tex.Civ.App., 1928; writ dismissed) ; Gehret v. Hetkes, 36 S.W.2d 700 (Tex.Comm.App., opinion adopted, 1929); Maytag Southwestern Co. v. Thornton, 20 S.W.2d 383 (Tex.Civ.App., 1929, writ dismd.) ; Humphrey v. Harrell, 29 S.W.2d 963 (Tex.Comm.App., 1930); Wear v. McCallum, 119 Tex. 473, 33 S.W.2d 723 (1930); Empire Gas & Fuel Co. v. Noble, 36 S.W.2d 451 (Tex.Comm.App., 1931); Stewart v. Byrne, 42 S.W.2d 234 (Tex.Comm.App., 1931) ; Smith v. Ferrell (Comm. of App., 1932), 44 S.W.2d 962 (1, 2) and (7), opinion expressly approved by Supreme Court; Winters Mutual Aid Ass'n, Circle No. 2 v. Reddin (Comm. of App., 1932), 49 S.W.2d 1095 (4, 5) approved by Supreme Court; Honey v. Wood, 46 S.W.2d 334 (Tex.Civ. App., 1934, n. w. h.) ; Texas Employers’ Ins. Ass’n v. Arnold; 126 Tex. 466, 88 S.W. 2d 473 (1935); Mann v. Risher (1938), 131 Tex. 498, 116 S.W.2d 692(5); Garcia v. Jones, 155 S.W.2d 671 (Tex.Civ.App., 1941, writ refused, w. o. m.) ; Grayson v. Johnson, 181 S.W.2d 312 (Tex.Civ.App., 1944, n. w. h.) ; Kelly v. Wright (1945), 144 Tex. 114, 188 S.W.2d 983(6) ; Garcia v. Ramos, (Tex.Civ.App., 1948, writ refused), 208 S.W.2d 111(1); Garza v. King (Tex.Civ. App., 1950, writ ref.), 233 S.W.2d 884; Smith v. City of Dallas, 248 S.W.2d 832 (Tex.Civ.App., 1952, n. w. h.) ; Banks v. Crawford (Tex.Civ.App., 1959, writ refused, n.r. e.), 330 S.W.2d 243; Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234(1), (1961); Chapa v. Wirth, 343 S.W.2d 936 (Tex.Civ.App., 1961, n. w. h.) ; Moore v. Mathis, 369 S.W.2d 450 (Tex.Civ.App., 1963, writ refused, n. r. e.); 3 Ala.Law Review, 224, 226, 1950-51.

The above are a few of the myriad of authorities, but I do not want to unduly lengthen this opinion.

There has also been a well-recognized distinction between the pleadings and proof necessary to secure a retrial on a motion for new trial and on a bill of review. Many of the cases cited immediately above set out the distinction. A clear statement of this difference, and the reason therefor, is found in the case of Smith v. Ferrell (Comm. of App., 1932), 44 S.W.2d 962 (1 & 2) & (7), opinion expressly approved by the Supreme Court.

“It has been well said that in ordinary cases the trial judge has a certain amount of discretion in granting new trials during the term. However, no such discretion can be exercised after the expiration of the term. The judgment then becomes a vested right which can only be divested by a direct proceeding filed for that purpose, and, when such a proceeding is resorted to, the person presenting the bill must bring himself strictly within the rules of law providing for relief in such cases. It is not enough that he plead and prove that he had a meritorious defense in the first instance, but he must go further and show that he was then free from negligence

The case of State v. Newman (Tex.Civ.App., 1951, writ refused), 237 S.W.2d 417, expressly refused to recognize as a test in a bill of review case that the failure to file an answer before judgment taken could be excused by showing such failure was not intentional nor the result of conscious indifference. The trial court found that the failure of the defendant to file an answer before default was not intentional' nor the result of conscious indifference on his part, but was due to a mistake of an accident which prevented him from making his defense, etc., etc.

The court said:
“No intimation is made that Mr. Newman was prevented from making his defense by the fraud, accident or wrongful act of plaintiff; or that there was not any fault or negligence of the defendant, and under all of the circumstances and facts in this case it is apparent that the'failure of the defendant to file an answer was occasioned by the negligence or lack of diligence by the defendant and/or his attorneys) and he cannot be relieved of the effect of the judgment.”

That part of the Hagedorn case quoted by the majority opinion holds only that the reliance on the clerk’s statements as to the contents of his official records, is an excuse for the defendant’s negligence in not filing a motion for new trial, nor for failure to file an answer by appearance day plus eight days. Hagedorn does not hold that misinformation given by the clerk can be imputed to the plaintiff herein so as to satisfy the second well-recognized requirement, that defendant was prevented from making his defense by the fraud, accident or wrongful act of plaintiff herein. As we have said before, it is affirmatively shown that plaintiff was guilty of no such conduct, but on the contrary the record shows that plaintiff’s attorney on the eighth day after appearance day sent word to defendant Hanks that no answer had been filed and a default judgment would be taken. In spite of this information received by plaintiff on May 24th, no answer was filed until May 26th.

Although the majority relies solely on Hagedorn as authority for its holding that misinformation from the court clerk — unmixed with any fault of the opposite party— will entitle a negligent defendant to set aside a default judgment after term time, it overlooks the following holding in Hage-dorn : “Again, Hagedorn cannot prevail be-because he has not shown that he was prevented from making his defense to the Alexanders’ suit by their fraud or wrongful act." This quote is just as much a declaration of the law as that part quoted in the majority opinion.

A bill of review is an equitable proceeding'and one of the fundamental maxims of equity is that “equity rewards the diligent, not one who has slept on his rights.”

In this case the majority has deprived an innocent plaintiff of a judgment of a court of record entered not on appearance day but on the ninth day thereafter and before an answer was filed. This judgment became a final judgment thirty days after its entry. Our rules and our decisions deny to a trial judge the right or jurisdiction to grant a new trial therein, but the majority opinion herein applies new trial rules to a bill of review, and affirms the trial court’s action granting a new trial and hearing the case.

I cannot bring myself to disregard the well-established precedents as set out in such a multitude of well reasoned opinions by this Court and by the Courts of Civil Appeals for more than one hundred years. The experience of this State has been that these rules are best in order that justice may prevail.

As said by this Court in Wear v. McCallum (1930), 119 Tex. 473, 33 S.W.2d 723, 725:

“A judgment by default in a trial court must be respected and upheld when there was no fraud or mistake in its procurement, and where fair and ample opportunity was afforded the defendant to controvert and contest on their merits the allegations of the plaintiff.”

I would affirm the judgment of the Court of Civil Appeals because it follows what was, at the time it was rendered, the well-established and never-questioned law of all the cases decided by all the courts of this State.