                               NUMBER 13-09-00315-CV

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS AND THE TEXAS
DEPARTMENT OF TRANSPORTATION,                                            Appellants,

                                          v.

NICO-WF1, L.L.C.,                                                           Appellee.


                     On appeal from the 107th District Court
                          of Cameron County, Texas.



                          MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Benavides, and Vela
             Memorandum Opinion by Justice Benavides
       This is an appeal from an order granting NICO-WF1, L.L.C.’s (“NICO”) motion for

summary judgment on its counter-suit for declaratory judgment and denying the motion for

summary judgment filed by the State of Texas and the Texas Department of Transportation

(collectively, the “State”).

       The underlying suit brought by the State involves NICO’s building and concrete
awning located on Arroyo Boulevard in the city of Los Fresnos, Texas, which the State

argues encroaches upon its public use right-of-way. By four issues, the State argues that:

(1) when the streets were dedicated to public use, there was no intention to reserve the

outermost fifteen feet of the streets for property owners to build upon; (2) the building and

attached concrete awning are located within the public right-of-way and therefore constitute

an encroachment; (3) the State has the affirmative duty to remove an encroachment from

a right-of-way dedicated to public use; and (4) a private party cannot limit or control the

State’s discretion over the use of streets dedicated to the public. By a cross-issue, NICO

argues that in the event the trial court’s declaratory judgment is not affirmed, the State has

not established each element of its cause of action for trespass as a matter of law, and

therefore, is not entitled to summary judgment but only a remand. We affirm.

                                      I. BACKGROUND

       Except where specifically noted, the following facts are undisputed. NICO is the

owner of the building and attached concrete awning and covered sidewalk located at 704

North Arroyo Boulevard, also known as FM 1847, in Los Fresnos. The building is situated

on Lots 28-34, Block 13 of the original townsite of Los Fresnos. NICO’s building and

attached structures, including the concrete awning, sidewalk, and steps, currently extend

nine to ten feet into the 100 foot-wide area designated as Arroyo Boulevard, but all of the

structures remain outside of the current curb lines of Arroyo Boulevard. The building was

constructed sometime during the 1930s and retains all of its original characteristics,

including the awning-covered sidewalk. The State claims in its brief, without citing any

support in the record, that it has contracted to make improvements to Arroyo Boulevard

“[i]n order to improve mobility and enhance safety” on the road, and that the State requires

the use of the additional nine to ten feet to complete its proposed improvements. The

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Arroyo Boulevard public roadway is currently seventy feet wide from curb to

curb—stretching thirty-five feet in each direction from the center stripe. In October 2008,

the State filed the underlying suit alleging trespass and asking for an injunction requiring

NICO to remove a portion of its building and the entire awning-covered sidewalk.

       The streets, boulevards, and alleys of Los Fresnos, including Arroyo Boulevard,

were dedicated to public use in the subdivision plat titled, “Map of Unit A of the Townsite

of Fresnos,” (“townsite map”) dated January 21, 1928 and recorded in volume 7, page 48

of the map records of Cameron County, Texas. The dedication language in the townsite

map provides:

              I, A. H. Fernandez, Trustee, the owner of the land as shown on the
       accompanying map, have caused said land to be surveyed, subdivided,
       platted and named as shown by said map, and do now hereby dedicate to
       public use, subject to the conditions, restrictions and reservations hereinafter
       enumerated, the streets, boulevards and alleys as shown on said map.

               The said A. H. Fernandez, Trustee, now here specifies, that curb line
       shall be ten (10) feet inside the line of all streets and boulevards above
       mentioned, with ten (10) feet radius curvature at all block corners, except on
       Arroyo Boulevard where the curb line shall be fifteen (15) feet inside the
       street line and on Alamo Street the curb line shall be seven and one-half (7
       1/2) feet inside the street line.

               The said A. H. Fernandez, Trustee, now has the right and now here
       reserves and retains the right to occupy and use said streets, boulevards and
       alleys for purposes of constructing, maintaining and operating ditches,
       gutters, pipe-lines and culverts, and other appurtenances for drainage
       purposes, pipe-lines and conduits with necessary appurtenances for the
       distribution and sale of water, gas or oil for railroads or other lines of
       transportation for the carriage of freight or passengers, for lines of poles and
       wires, or conduits, for the purposes of the distribution and sale of light or
       power, and for telephone or telegraph purposes. The said A. H. Fernandez,
       Trustee, now here reserves the right to excavate and grade and otherwise
       improve all streets, boulevards and alleys and to temporarily interfere with
       the use of same while so doing.

              The rights herein reserved may be assigned in whole or in part to
       other persons, firms or corporations, or may be dedicated to public use.


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       The dispute in this case arises out of the resulting boundaries of the public use

dedication of Arroyo Boulevard based on this dedication language. In the townsite map

itself, text indicating the width of Arroyo Boulevard notes “100, 50x50.” In certain portions

of the map, however, an additional dotted line indicates where fifteen feet is cut off on each

side of Arroyo Boulavard. In another part of the townsite map, a similar dotted line appears

with the text, “curb line.”

       The State filed a petition for injunction requesting that NICO be required to remove

part of its building and attached concrete awning because it is located within the State’s

right-of-way. In response, NICO filed a counter suit for declaratory judgment seeking a

declaration that its building and awning did not encroach on the State’s right-of-way. Each

party filed motions for summary judgment.

       Following an April 16, 2009 hearing on the parties’ competing motions for summary

judgment, the trial court granted NICO’s motion for summary judgment and denied the

State’s motion for summary judgment on April 21, 2009, and entered final judgment on

May 7, 2009. Based on the language in the townsite map, the trial court made findings in

its judgment, among others, that: (1) the right-of-way easement for public roadway

purposes only extends to the present curb lines, thirty-five feet in either direction from the

centerline of Arroyo Boulevard; (2) the building and all structures attached thereto are

entirely outside the curb lines established on Arroyo Boulevard and are not an

encroachment into the right-of-way easement; and (3) NICO, as the successor in title to

A. H. Fernandez, has retained the right to make improvements to the portion of Arroyo

Boulevard lying in the fifteen-foot area between the street line and the curb line. This

appeal ensued.



                                              4
                                   II. STANDARD OF REVIEW

         We review the order granting NICO’s traditional motion for summary judgment and

denying the State’s traditional motion for summary judgment de novo. See Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a summary

judgment, we take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant's favor. Id. When both

parties move for summary judgment on the same issues and the trial court grants one

motion and denies the other, as here, the reviewing court considers the summary judgment

evidence presented by both sides, determines all questions presented, and if the reviewing

court determines that the trial court erred, renders the judgment the trial court should have

rendered. Id.; see FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.

2000).

                                     III. ANALYSIS

         Each party in this case presents the 1928 townsite map as the basis for establishing

its entitlement to a judgment as a matter of law, and the interpretation of that document

determines our disposition on each of the State’s issues on appeal.

         “[T]he cardinal rule of construction upon the subject of dedication by maps or plats

is that which prevails respecting ordinary grants, and that is to discover and give effect to

the intention of the party as manifested by his acts.” Priolo v. City of Dallas, 257 S.W.2d

947, 952 (Tex. Civ. App.–Dallas 1953, writ ref’d n.r.e.). In order to give effect to the

intentions of the granting party, “[a] plat or map must be fairly and reasonably

construed . . . [and] must be considered as a whole; all lines, figures, letters, and records

used thereon must be considered. In short, no part of a plat or map is to be rejected as

superfluous or meaningless, if it can be avoided.” Copeland v. City of Dallas, 454 S.W.2d

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279, 283 (Tex. Civ. App.–Dallas 1970, writ ref’d n.r.e.).

A.       The Outermost Fifteen Feet of Arroyo Boulevard

         By its first issue, the State contends that the outermost fifteen feet on either side of

the designated curb lines of Arroyo Boulevard are restricted to public use and that it is an

encroachment on the State’s right-of-way easement for a private owner to build on, or

otherwise restrict access to, that segment of property.

         NICO and the State agree in this case that the 1928 townsite map explicitly shows

the width of each road that was being dedicated to public use, and, specifically, that Arroyo

Boulevard is shown to be “100, 50x50" or 100 feet wide. Additionally, each party agrees

that the dedicating language provides that all dedications in the townsite map are “subject

to the conditions, restrictions and reservations [therein] enumerated,” and among these

“conditions” is that the curb line on Arroyo Boulevard “shall be fifteen feet inside the street

line.”

         It is clear that NICO is the fee simple owner of the portion of Arroyo Boulevard

immediately adjoining its property and lying between the easternmost boundary of its

property and the centerline of Arroyo Boulevard, subject only to a right-of-way easement

granted to the State. In other words, the State does not own the property on which Arroyo

Boulevard is currently located; it only has the ability to use that property for the purpose of

a public roadway, and only subject to the conditions, restrictions, and reservations in the

dedication language contained in the original townsite map. The proposition that a grantor

maintains fee simple ownership of property designated for public use is well-settled Texas

law.1

         1
          See Humble Oil & Ref. Co. v. Blankenburg, 149 Tex. 498, 235 S.W .2d 891, 893 (1951) (“[T]he
dedication . . . [for] the use and benefit of the public did not convey the Townsite Com pany's title. It created
an easem ent, the fee rem aining in the Townsite Com pany subject to the easem ent.”); see also Pittman v. City

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         If we were to hold that the townsite map gave the State a right-of-way easement to

the entire 100-foot-width indicated on the map, we would be considering the condition

included in the designating language—that the curb lines were to be fifteen feet inside the

street line—to be simply “superfluous or meaningless,” and for that reason, we cannot so

hold. See Copeland, 454 S.W.2d at 283. The designating language specifically notes an

exception to the townsite map’s indication that the State’s right-of-way easement would be

100 feet wide by noting “that [the] curb line shall be ten (10) feet inside the line of all streets

and boulevards above mentioned, with ten (10) feet radius curvature at all block corners,

except on Arroyo Boulevard where the curb line shall be fifteen (15) feet inside the street

line.”    This language is clear and unambiguous, and therefore, to “give effect to the

intention of the [grantor] as manifested,” we uphold the trial court’s interpretation of the

townsite map. See Priolo, 257 S.W.2d at 952. Specifically, we hold that the townsite map

limited the right-of-way easement for roadway purposes to a maximum of seventy feet,

being thirty-five feet on either side of the centerline of Arroyo Boulevard to the easternmost

and westernmost curb lines. We overrule the State’s first issue.

B.       Curb Line vs. Street Line

         By its second issue, the State contends that, even though NICO’s building and

awning-covered sidewalk are outside the curb line, the building and awning-covered

sidewalk are inside the street line, and therefore, constitute an encroachment.


of Amarillo, 598 S.W .2d 941, 944 (Tex. Civ. App.–Am arillo 1980, writ ref’d n.r.e.) (citing Hill Farm, Inc. v. Hill
County, 436 S.W .2d 320, 321 (Tex. 1969); City of Mission v. Popplewell, 156 Tex. 269, 294 S.W .2d 712, 715
(1956); City of Fort W orth v. Sw. Magazine, 358 S.W .2d 139, 141 (Tex. Civ. App.–Fort W orth 1962, writ ref'd
n.r.e.); Tex. Co. v. Texarkana Mach. Shops, 1 S.W .2d 928, 931 (Tex. Civ. App.–Texarkana 1928, no writ))
(“W hen a road or street is dedicated to the public, the governm ental entity exercising jurisdiction over the
street ordinarily acquires only an easem ent in the street and holds the street in trust for the benefit of the
public. The easem ent held by the governm ental entity necessarily carries with it the right to use and control
as m uch of the surface or subsurface of the street as m ay be reasonably needed for street purposes. Unless
the dedication states otherwise, the abutting landowner owns the fee sim ple title to the center of the street,
subject to the public easem ent.”).

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       Having held that the roadway easement does not extend past the curb line, the

question is whether the State owns an easement to the additional fifteen feet for any other

purposes besides a roadway such that NICO would not be permitted to build on that

property. The dedicating language manifests only an intent to dedicate Arroyo Boulevard

for use as a public roadway, and because the roadway was limited to the seventy feet

inside the curb lines, as the townsite map clearly indicates, then it must be the case that

the additional fifteen feet was not dedicated for any public use whatsoever. Therefore, we

hold that the State’s public use right-of-way for any other purposes did not extend outside

the seventy feet from curb line to curb line.

       The State correctly points out, that “where a width of land is dedicated to roadway

easement, the amount dedicated is not reduced by actual use of a lesser width.”

Steinberger v. Archer County, 621 S.W.2d 838, 842 (Tex. App.–Fort Worth 1981, no writ).

The State points us to the case of Joseph v. City of Austin, where a similar dispute arose

about the outermost fifteen feet of a roadway dedicated to public use. 101 S.W.2d 381,

383 (Tex. Civ. App.–Austin 1936, writ ref’d). Joseph is distinguishable, however, because

there is no indication that a specific reservation of the outermost fifteen feet appeared in

the dedication language, nor that there was a specific designation as to where the curb

lines would be placed. See id. We do not construe the townsite map in this case to

convey any roadway easement beyond that currently being used—the seventy feet inside

the designated curb lines. We construe the “street line,” as referenced in the dedication

language, to be merely a reference point from which the curb line can be described. For

the same reasons discussed above, we hold that the State’s only right-of-way easement

for street use is within the current seventy-foot width of Arroyo Boulevard, and therefore,



                                                8
there is no encroachment so long as the building is outside the curb line. The parties

agree that NICO’s building is at least five feet outside the curb line, and therefore, we

overrule the State’s second issue.

C.     State’s Duty to Remove Encroachments

       By its third issue, the State contends that it has an affirmative duty to remove an

encroachment from a right-of-way dedicated to public use. Because we have already held

that NICO’s building and awning covered sidewalk do not extend into the State’s public use

right-of-way, we overrule the State’s third issue.

D.     State’s Discretion to Determine Curb Line Placement

       By its fourth issue, the State contends that the dedicating language in the original

townsite map could not permissibly control the State’s discretion in determining where to

place the curb lines on Arroyo Boulevard; thus, the State retained the ability to place the

curb lines for Arroyo Boulevard at a width of up to 100 feet. We have already held that the

dedication language was intended only to create a public road right-of-way easement for

the seventy feet in which Arroyo Boulevard is currently located, not the entire 100 foot

width indicated in one portion of the townsite map. The State’s discretion to designate

where the curb line will be placed extends only out to its current position of seventy feet

from curb to curb. Though we agree that the State has discretion to determine where in

its right-of-way it will build a roadway, it does not have discretion to build a roadway outside

of its right-of-way easement. See Joseph, 101 S.W.2d at 385 (noting that “[t]he public

authorities are the exclusive judges [of] when and to what extent the streets shall be

improved,” but limiting this general rule to interests in which there is a “public interest”). For

the reasons stated here and in our construction of the townsite map above, we overrule


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the State’s forth issue.

E.      Public Policy

        Additionally, throughout its brief, the State appeals to public policy in an effort to

convince this Court of the necessity of finding that the right-of-way easement extends to

100 feet in width. In one instance, the State notes that “[t]he demands of the public and

the progress of the area surrounding Los Fresnos require Arroyo Boulevard/FM1847 to be

widened and improved.” We are wholly unconvinced of the negative public policy effects

of affirming the trial court’s judgment in this case because the State maintains the ability

to condemn the property for public use if it is indeed necessary for the public benefit, and

moreover, this Court is not permitted to create property rights in order to satisfy some

perceived public need. See generally TEX . PROP. CODE ANN . §§ 21.011-.016 (Vernon

2008) (outlining the procedures for eminent domain condemnation).

                                            IV. CONCLUSION

        For the forgoing reasons, we affirm the trial court’s order granting NICO’s motion for

summary judgement and denying the State’s motion for summary judgment, and we affirm

the trial court’s final declaratory judgment findings in their entirety.2




                                                             ______________________________
                                                             GINA M. BENAVIDES,
                                                             Justice


Delivered and filed the
16th day of December, 2010.


        2
          As we affirm the judgm ent, we need not reach NICO’s counter issue on appeal. See T EX . R. A PP .
P. 47.1, 47.4.

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