                       August   25;   1952


Hon. Cullen B. Vance        Opinion No. V-1510
County Attorney
Jackson County              Re: Authority of Jackson
Edna, Texas                     County to sell the pre-
                                sent courthouse property
                                under the suljmltted
Dear Sir:                       facts.
            Your request for our opinion reads in part as
follows:
         "I am enclosing copy of a Deed dated
    December 19, 1904, from the New York, Texas
    and Mexican Railway Company to Jackson
    County.conveying a plot of ground 240 feet
    by 400 feet for Cowthouse~purposee.   Jack-
    son.County erected a Courthouse building on
    this plot of ground In 1905 at a cost ln~ex-
    cess of $2O,,OOOiO,O
                       aiidconstructed of brick
    within the requirements of this Deed. This
    bui1ding.U approximately 52-l/6 feetby 85-
    5/6 feet, outside dimensions.

          "According to Affidavits that I have
     procured from several individuals who have'
     been acquainted with this property for a
     great many years, the plot of ground on which
     the Courthouse ,butldlng,issituated has 'been
     used for the following other purposes:,
          "A public fountain is maintained In
     front of the Courthouse and rest rooms open
     24 hours a day are provided in a separqte
     building for the~uae of,the public. The plot
     of ground has been landscaped, a rose garden
     and other shrubbery are maintained thereon,
     and some 30 years ago approximately 25 or 30
     Hackberry and Pecan trees were planted that
     now provide considerable shade. Benches have
     been maintained on this ground for the use
     by members of the public and the ground has
     been used for holding political rallie$,
     church sales and bazaars, preaching services,
Hon. Cullen B. Vance, page 2 (V-1510)


    club carnivals, public fairs and exhibitions,
    band concerts, chautauquas, public barbecues,
    and during more recent years athletic and pep
    rallles and an annual firemen's public Chrlst-
    mas tree have been held. There are two monu-
    ments on this gro,und,'
                          one erected to the memory
    of~Irvln ,MooreLaughter, who was killed while
    in naval-service In 1916, the monument having
    been erected in about 1917, and the other a
    centennial marker or monument erected by the
    State of Texas in 1936. The entire plot of
    ground Is surrounded by public streets. Since
    the Courthouse was erected thereon, the plot
    of ground has been used by various organiza-
    tions and members of the public for public
    gatherings and as a public meeting place and
    has been the only place provided in the City
    of Edna during all of these years as a pub-
    lic meeting place for all members of the
    public without regard to race, creed or reli-
    gious affiliation. According to these affi-
    davits, this plot of ground has been referred
    to and mentioned as "The Courthouse Lawn" and
    also as "The Courthouse Square". It is lo-
    cated right In the heart of the business dls-
    trlct of the City of Edna. In addition to
    the above, the benches and lawn on this plot
    of ground have been used by the public gen-
    erally as a place of enjoyment and rest.
         'Based on the foregoing fact situation,
    I should appreciate an opinion from your De-
    partment as to whether or not Jackson County
    could sell this property should the Court-
    house be located on another plot of ground
    some two blocks away."
          The deed of conveyance to Jackson County con-
tained the following:
          "This entire conveyance, however, is
     based upon this express condition subsequent,
     to say: That if the said County of Jackson
     shall fall to cause to be erected and com-
     pleted upon sald.above conveyed property a
     courthouse for Jackson County to cost not
     less than Twenty Thousand ($20,000.00) Dol-
     lars, and the .outer walls of which shall be
     brick or stone, within the space of three
. .- _



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


             years from~the date '0fthi.s~deed, then this
             conveyancesshall,become:nuU and void, and
             all the titlesconveyed~,by'thepresent deed
             shall at once'revert upon such default3 as
             aforesaid, to the New York Texas and;,Mexlcan
             Railway Company, and Its successors.
                   However, sinc'ethe condition waspcomplied with
         there is no impediment against the sale of the property
         in this respect.
                   We agree with you that the question concerning
         the sale of the property and the changing the location
         of the courthouse could be controlled by the holding in
         the case of City of Tyler v. Smith County 246 S.W.2d
         601, 605 (Tex. Sup. 19521,where.lnIt Is stated:

                  'There was never:any-express ~dedica-
             tlon ,of the square in controversy asa ptibl&.c
             square, so our problem Is to determine wheth-
             er the record shows,a dedication by implica-
             tion, which is said'to be analo ous to the
             dpctrlne of estoppel In a.     28 C.J.S
             Dedication 8.2, p. 507 In or.derto esiibllsh'
             such a dedication there must have been a
             clear and unequivocal Intention on the part
             of Smith County to devote the square to
             public use and acceptance by the public.
             Oswald v. Grenet, supra. We have concluded
             that such dedication Is shown In this case.
                  II
                   . . .
                  "There can be no doubt that’the public
             accepted the dedication.' They ,usedit as,a
             market place, as a 'parkingplace, as'a:place
             for entertainment and rest, as aplaceefor
             preaching services and polltlcalmeetfngs,
             as a place to getwater for themselves and
             their stock, ,and according to undisputed
             testimony; they use It today as a 'place of
             enjoyment and rest', 'to enjoy the roses,
             shrubbery and various landscaping that has
             been put there.' According to the weight of
             authority, this establishes acceptance, and,
             we so hold. 16 Am.~Jur., Dedication, Sec.
             35, P. -383. ,,
                                                           _, .- .


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


          “Under these undisputed facts evidencing
     dedlcatinn and after more than a century of
     unquestioned general public use following sxid
     accepting such dedication, it cannot justly
     be said t&at Smith County can now convert the
     square to private use. Of course, the county
     may abandon the present square as a site for
     a courthouse and build a new courthouse wher-
     ever it chooses; but If It elects to do that,
     the entire square must remain Impressed with
     the right of the public to use it for general
     public purposes; it cannot be diverted to
     private uses. Lamar County v. Clements, 49
     Tex. 347, supra.”
          In Attly Gen. Op. V-1474 (1952) It was held
that land dedicated to the public for park purposes
could not be diverted for any other use, stating that
It must remain For the use of the public for park pur-
poses and cannot therefore be sold or exchanged.
           In conneatlon with the above your attention
is directed to the fact that the City of Tyler case was
based upon facts which were unconkroverted. We do not
feel justified In assuming that there are no other Facts
which might be developed with regard to the intentions
to dedicate. Therefore, the answer to your question Is
dependent upon all the facts which might,later be de-
veloped and the application of the law as stated In this
,oplnion.
                      SUMMARY
          Where there is a dedication and ac-
    ceptance OF a courtho,usesite for public
    use. it cannot be diverted to vrlvate use.
    City of Tyler v. Smith County,-246 S.W.2d
    ijO1 (Tex. Sup. 1952) .
                                 Yours very truly,
APPROVED:                          PRICE DANIEL
                                 Attorney General
J. C. Davis, Jr.
County Affqlra Division
E. Jacobson
Reviewing Assistant
Charles D. Mathews                     Assistant
First As&&ant
BA:am
