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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
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.

          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.
 

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
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.
 
          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.  
          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,
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
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.
 
 

                                                                               ______________________________
                                                                               GINA M. BENAVIDES,
                                                                               Justice
 

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