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RESO 2011-16 - Accepting right of way in P. Gray LeagueResolution No. 2011-16 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS, ACCEPTING PUBLIC STREET RIGHT-OF-WAY DEDICATED TO THE CITY OF HUNTSVILLE, TEXAS Whereas, H. M. Whitley, by Deed dated April 22, 1938 recorded in Volume 90, page 332, Deed Records of Walker County, Texas, did dedicate to the public a strip of land for a public street. Whereas, by Street Dedication, executed by owners adjacent to said street, dated March 1, 1974 recorded in Volume 265, page 93, Deed Records, did acknowledge and ratify the public nature of said street. Said Street Dedication included a metes and bounds description, attached as "Exhibit A" thereto, specifically describing a 0.20 acre of land for said street right-of-way. Whereas, the City Council of the City of Huntsville, Texas hereby finds that the March 1, 1974 Street Dedication that is referenced above: (i) confirms 1938 dedication to the city of the therein described street right-of-way; and (ii) confirms that the City accepted the street right-of-way and maintained the same. Whereas, the City Council of the City of Huntsville, Texas hereby finds that the street right-of- way described in the March 1, 1974 Street Dedication is part of the public streets in the City. Whereas, the City Council of the City of Huntsville, Texas has determined to and does ratify by Resolution the acceptance of the street right-of-way, specifically described in "Exhibit A" attached hereto, and that the acceptance of such is a public benefit. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS, THAT: Section 1. Section 3. The City Council of the City of Huntsville approves the above findings and formally accepts by Resolution, the dedication of the street right-of-way, described in "Exhibit A" attached hereto. The City Manager or his designee is instructed to complete and execute the Certificate of Acceptance attached hereto as Exhibit "B" and file this resolution and Exhibits "A" and "B" with the Walker County Property Records Clerk. PASSED AND APPROVED this 16th day of August 2011. TY UNTSVILLE, TEXAS rner, Mayor APPR VE TO FORM: . Schneider, City Attorney Resolution No. 2011-16 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS, ACCEPTING PUBLIC STREET RIGHT-OF-WAY DEDICATED TO THE CITY OF HUNTSVILLE, TEXAS Whereas, H. M. Whitley, by Deed dated April 22, 1938 recorded in Volume 90, page 332, Deed Records of Walker County, Texas, did dedicate to the public a strip of land for a public street. Whereas, by Street Dedication, executed by owners adjacent to said street, dated March 1, 1974 recorded in Volume 265, page 93, Deed Records, did acknowledge and ratify the public nature of said street. Said Street Dedication included a metes and bounds description, attached as "Exhibit A" thereto, specifically describing a 0.20 acre of land for said street right-of-way. Whereas, the City Council of the City of Huntsville, Texas hereby finds that the March 1, 1974 Street Dedication that is referenced above: (i) confirms 1938 dedication to the city of the therein described street right-of-way; and (ii) confirms that the City accepted the street right-of-way and maintained the same. Whereas, the City Council of the City of Huntsville, Texas hereby finds that the street right-of- way described in the March 1, 1974 Street Dedication is part of the public streets in the City. Whereas, the City Council of the City of Huntsville, Texas has determined to and does ratify by Resolution the acceptance of the street right-of-way, specifically described in "Exhibit A" attached hereto, and that the acceptance of such is a public benefit. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS, THAT: Section 1. Section 3. The City Council of the City of Huntsville approves the above findings and formally accepts by Resolution, the dedication of the street right-of-way, described in "Exhibit A" attached hereto. The City Manager or his designee is instructed to complete and execute the Certificate of Acceptance attached hereto as Exhibit "B" and file this resolution and Exhibits "A" and "B" with the Walker County Property Records Clerk. PASSED AND APPROVED this 16th day of August 2011. CITY OF HUNTSVILLE, TEXAS J Turner, Mayor APPROVED AS TO FORM: Leonard V. Schneider, City Attorney City Council Meeting Agenda Item Item Title: Date: Agenda Item No.: 13 1/2 Street Acceptance 8/16/2011 Requested By: Dept./Div: Dept. Approval: Aron Kulhavy, AICP, Public Works Dir. 700 AK Finance approval: Issue/Item Description: Consider a resolution accepting a dedication of Right-of-Way for a 0.20 acre tract of land commonly known as 13 1/2 street. Background: This section of "street" has been an item of contention for many years. Several opinions have been offered on this matter and staff has researched it thoroughly for a firm and final determination of whether or not the 0.20 acres in question are or are not a City street. After thorough research and guidance from property records staff, the City Surveyor, and the City Attorney, it is the opinion of staff that this is a City Street and formal acceptance of this Right-of- Way by resolution will provide a conclusive answer to this situation. This issue dates back to the early 1930's by delineating a strip of land for street and surrounding parcels. Other deeds for tracts sold along the street in question between 1938 and 1966 show a strip of land of various width for a public street. Finally, in 1974, a deed was done dedicating the "street" to the City, but no formal acceptance of the dedication was found in a search of City records. 13 1/2 Street has been used by not only the owners of property along its boundaries but also by the postal service and for refuse collection. Maintenance on this street has been sporadic typically in conjunction with the answer to the question if this is a city street or not. Due to these recurring questions, formal acceptance of the street will clarify the answer and allow the City to maintain the street in accordance with existing policies and procedures. Should the City accept the street, maintenance will fall to the City and repairs and improvements will be scheduled in upcoming budgets. Facts to Consider: • 13 1/2 street was dedicated to the City previously, but records are inconclusive as to acceptance of the dedication by the City • This resolution will formally accept the dedication of 13 1/2 street • The City will assume maintenance of the street in accordance with current policies and procedures Fiscal Impact/Funding Source(s): None at this time. Maintenance of the street will be handled by the Street Department through budgeted line-items in the future. Attachment(s): • Resolution 2011-16 • Surveyor's memo Recommendation motion(s): Approve the resolution accepting the dedication of 13 1/2 Street. 1- PRESENTED 1- TABLED 1 OTHER SECOND: APPROVED VOTE: 0 1 1 - 1.- DECLINED ACTION Resolution No. 2011-16 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS, ACCEPTING PUBLIC STREET RIGHT-OF-WAY DEDICATED TO THE CITY OF HUNTSVILLE, TEXAS Whereas, H. M. Whitley, by Deed dated April 22, 1938 recorded in Volume 90, page 332, Deed Records of Walker County, Texas, did dedicate to the public a strip of land for a public street. Whereas, by Street Dedication, executed by owners adjacent to said street, dated March 1, 1974 recorded in Volume 265, page 93, Deed Records, did acknowledge and ratify the public nature of said street. Said Street Dedication included a metes and bounds description, attached as "Exhibit A" thereto, specifically describing a 0.20 acre of land for said street right-of-way. Whereas, the City Council of the City of Huntsville, Texas has determined to and does accept the street right-of-way, specifically described in "Exhibit A" attached hereto, and that the acceptance of such is a public benefit. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS, THAT: Section 1. The City Council of the City of Huntsville formally accepts the dedication of the street right-of-way, described in "Exhibit A" attached hereto. Section 2. The City Manager or his designee is instructed to complete and execute the Certificate of Acceptance attached hereto as Exhibit "B" and file this resolution and Exhibits "A" and "B" with the Walker County Property Records Clerk. PASSED AND APPROVED this 16th day of August 2011. CITY OF HUNTSVILLE, TEXAS J Turner, Mayor ATTEST: APPROVED AS TO FORM: Lee Woodward, City Secretary Leonard V. Schneider, City Attorney FIELD NOTES FOR A PROPOSED STREET EASEMENT, P. GRAY LEAGUE, A -24, CITY OF HUNTSVILLE, WALKER COUNTY, TEXAS Being 0.20 are of land, more or less, situated in the P. GRAY LEAGUE, Abstract No. 24, Walker County, Texas and being out of and a part of the following two tracts of land: (1) a lot conveyed by R.W. Miller to H.M. Whitley by deed dated June 1, 1934 and recorded in Volume 75, page 636, Deed Records, and (2) a 1.39'acre tract conveyed by A.R. Hardy to A.M. Whitley by deed dated July. 1, 1927 and recorded in Volume 59, page 439, Deed Records, Wacker County, Texas, said 0.20 acre tract being more definitely'described as follows: BEGINNING at the.northeast corner of-said lot conveyed by Miller to Whitley, same being the northwest corner of a lot con- veyed by R.W. Miller to Raymond Davis by deed dated June 2, 1934 and recorded in Volume 75, page 638, Deed Records, found a 5/8" iron rod '(top pointed) for corner at the back of the south curb line of 13th Street; THENCE S 03 °01'SO "W, with the east line of said Whitley lot and the west line of said Davis lot, 76.17 feet to the northeast corner of a. -lot conveyed by Dorothy Whitley Meek, et al to.Ash- ford P. Manning by deed dated July 18, 1966 and.recorded in Vol- ume 201, page 501, Deed Records, a 5 /8" iron rod for corner; THENCE West, with the north line of said Manning lot, at 108.26 feet pass a 1 /2" iron rod for his northwest corner, con- tinuing with the north line-of a lot conveyed by W.M. Whitley to Edward G. Herrod by deed recorded in Volume 235, page 365, Deed Records, and with the north line of a lot conveyed by Mabel Gaines, et al to Mattie Ethel Flynt as the Second Tract in a deed recorded in Volume 238, page 643, Deed Records, a total distance of 250.71 feet to the northwest corner of said Flynt lots said corner being in the east line of the First Tract as described'in said deed from Gaines to Flynt; THENCE N 02 °15'E, with the east line of said Flynt First Tract, 28.12 feet to the southwest corner of a 0.6 acre tract con- veyed by Alma N. Rankin to Lewis H. Gaines by deed dated August 31, 1970 and recorded in Volume 230, page 192, Deed Records; THENCE East, with the south line of said Gaines 0.6 acre, 221.4 feet to its southeast corner; THENCE North, with the east line of said Gaines 0.6 acre, 50.84 feet to the south line of 13th Street; THENCE S 84 °54'E, with the south line of 13th Street, 32.36 feet to the Place of Beginning. Signed //' J.S. Moor.er Res( Public Surveyor No. 1572 March 1, 1974 EXHIBIT "B" Certificate of acceptance— Pursuant to Resolution No. 2011 -16 by the City Council of the City of Huntsville, Texas This is to certify that the interest in real property conveyed by the dedication of public street right -of -way, attached as "Exhibit A" hereto, to the City of Huntsville, Walker County, State of Texas has been duly accepted by Resolution No. 2011 -16 of the City Council of the City of Huntsville, Texas adopted and passed on August 8, 2011, and the City Council of the City of Huntsville, Texas. Printed Name: Title: State of Texas () () County of Walker () ACKNOWLEDGMENT This instrument was acknowledged before me on , by , as of the City of Huntsville, Texas. Seal Notary Public, State of Texas Aron Public Works Directo Huntsville, Texas Surveyor's Report June 2, 2011 Re: 13-1/2 Street Dedication This dedication issue keeps coming up every 4 or so years. Additionally, miss-information contained in a Memorandum by Dianne Fuller, dated S 18, 2006, has only served to complicate this matter. She states "yet the city of Huntsville refused the dedication". Apparently, this was her conclusion based on the hand written notes of City Secretary, dated November I9,l983, stating "no mention in CC Minutes". OPINIONS have been rendered from time to time that differ concerning this matter. 1 would like to see some FORMAL RESOLUTION to put this to rest once and for all. The foliowing are facts relating to it and my interpretations s of same. References to this issue will be "street" for the subject in caption. FACTS OF RECORD: 1. The street im part of two tracts owned hvfl.M. . (�oeuouD tract l.�9ucr�uctbeucou�ed iol929 recorded io59/4]9.l�.}�. And the second, uu i .odjocentk/tbcca$liocnftbcl.Jg acre tract, acquired in 1934 recorded in 59/439, D.R. An Abstractor Map delineating these and surrounding parcels is shown herein as Exhibit "A" Note this map IS NOT filled of record. 2. Whitley sold 4 tracts, between 1938 and 1966, the first one, which lies north and west of the subject "street" states in part: "It is agreed that there shall be left open and dedicated to the public as a public street, a stri ofland lying along the south line ofthe above described tract, having a width of28feet along the entire length of same, also a strip of land adjacent to and along the east line ofsaid above described tract of land, approximately 31-]/2feet in width between said property and the Raymond Davis Homestead tract, and having a length of approximately 8Ofeet beginning at Raymond Davis 's Northwest corner and running South; and the grantees are hereby granted an easement in said two streets or right-of-ways, until said is properly platted and dedication and plat thereof placed of record in the Deed Records of Walker County, Texas, opening same perpetually to the use of the public for street purpoxex^ The other three original conveyances from Whitley, south of the subject "street", call for their north lines to adjoin the south line of a "28 foot street". No additional rights to any easement for ingress and egress are granted in these conveyances. A sketch of these original conveyances is attached hereto as Exhibit "B". 3. A Street Dedication, dated 1974 recorded in 265/93, D.R., states in part ^... street has been open to the public for many years and has been publically maintained during such period of time, but which street has never been dedicated 10 the public". And ^ .sucbstnx«t6uxheenful/vud//zcd by the public for many years, has been publicly maintained, and do hereby RATIFY the public nature of such street by expressly DEDICATJNG such Street to the City of Huntsville, Texas, for public street purposes". This was acknowledged by 9 individuals who were the owners of property adjacent to the "street". The attached metes and bounds agree with the area set aside by Whitley in 1938. A search of City Council Minutes, for 1974, has not revealed any formal action addressing this Dedication. However, references are made to real estate matters addressed in Executive Session. PERSONAL OBSERVATIONS: As stated before, I have been asked to provide survey services in conjunction with maintenance of the "street". On June 2007, Steve Stacy, City Engineer, requested that I stake the limits of the description included in the Street Dedication. In preparation of this survey, I acquired private survey records of Moorer & Woods, Inc. Two surveys made by J. S. Moorer are scanned and included herewith as Exhibits "C" and "D". I completed the staking, and as I recall, gravel was put on the "Street" surface to cut down on dust from traffic. A street sign labeled "13-1/2 Street" was present. I also observed a Postal Jeep delivering mail to the three residences on the south side of the "street". Note that Exhibit "C", dated 1974, shows a "Caliche road" generally in the area of the Street Dedication. LEGAL ISSUES AND COMMENTS: Clearly, the right-of-way was set apart and intended for a City Street since its inception in the Deed dated 1938. Please note an early case styled Oswald v. Grenet 22 Tex. 94 which states in part "A setting apart, or dedication to a public use, to be effectual, need not be by a deed; nor need it be evidenced by use of it having continued for any particular time; it is enough, that there has been some clear, unequivocal act, or declaration of the proprietor, evidencing to set apart for a public use, and that others have acted in reference to, and upon faith of such manifestation of intention". The original owners and subsequent owners of the tracts adjoining the "street" have relied on it as being such. Dedication is sort of tricky, a Plat, or in this case a Deed, setting apart a "street" is an OFFER of dedication by the owner. This dedication has to be "accepted" before it ripens completely. Our courts have consistently held this acceptance can be by usage and therefore an "implied acceptance" serves as acceptance of the dedication. Some excerpts are as follows: "Dedication is the setting apart by the owner for some public use, and actually or impliedly accepted for that use by or on behalf of the public". 19 Tex. Jur. 2d Dedication § 1, p. 178 et seq. "Dedication occurs when an owner sets apart for some public use, and the public actually or impliedly accepts that use". Ford v. Moren 592 S.W. 2d 385 "acceptance of a dedication may be implied, and that such implication may arise from long- continued use by the public". Gilder v. City of Brenham 67 Tex. 345 PROFESSIONAL OPINION: This issue boils down to two things: 1. Public usage for the intended purpose 2. Public maintenance The first is supported by the following: 1. Property owners, at least since 1946, abutting the south line of the "street" have relied on it, due to no other access being available. 2. The postal service has used it for addressing and delivery of mail. 3. The City has used it for garbage collection. The second is supported by the following: 1. Owners statements contained in the Street Dedication, dated 1974, that "street has been open to the public for many years and has been publically maintained during such period of time" 2. Survey plat, dated 1974, shows existence of a "road". 3. Maintenance has been performed by the City of Huntsville, however sporadic, as a "street". It is my opinion, that if owners sued for recognition as this "street" being 13-1/2 Street, they would have a good case. The first tract sold by Whitley grants specific rights to the Grantee to use the "street" for ingress and egress. The remaining three sales DO NOT, calling only to adjoin a "28 foot street". It could be argued they obtained rights to an implied easement along this "street". However, this would certainly be an issue for Title Companies who have insured ingress and egress rights to these three tracts. We have many City-maintained streets with much less record documentation to support their existence. This right-of-way is approximately 30 feet wide where it joins 13th Street and 28 feet wide going west to its end. This seems awful narrow for a street right-of-way, however, 13th Street going east from it has only a 25 foot wide right-of-way and it is paved with a concrete curb and gutter. I strongly urge some formal action is taken to avoid this dedication issue from raising its ugly head in the future. It has consumed a significant amount of my time and others. Much of the research was provided by Janet Ridley. The opinions herein are mine alone. Respectively, Leonard E. "Gene" Woods, City Surveyor LEW/ms Exhibits (4) 9 63-379 'see IS t 7/-325 69-504 55-390 /SI 7 74-1 1 zme re. a 1*. 59-439 East 421.7 229.7 EXH B IT A' W 5ubciivisiors P 6ir L6E i" /OW 13th Street 8 a- - 216.7 0. A. Willhoite April 22, 1938 90/332, D.R. 1.39 Ac, H. M. Whitley July 1, 1927 59/439, D.R. - 221.4 0 z "28 foot street" 13th Street Arch .5 W - 61.65 0 z W. M. Whitley - 87. July 18, 1946 W - 87.5 N 0) z 0 ;.7 0 July 18, 1966 201/501, DR. W - 104.75 ORIQINAL SALES FROM H. M. WHITLEY EXHIBIT "B" I3T-B STREET r .oela Lewis Gaines 230/402 See not* in.j;leed (101/147) —, ........ (Wil iho th ite q Llarington) (— / regarding U' strett easement / zpnee c, WIJA - it/..e z. -- -- -': — ;;;;;;;.«,,) Y. ri 1 ■ (6- .1/ ,,' 9. c., Aforlem,d.' — .45,22Z 1 Ala/b Elbe/ Pm' 258/643 Edward S. r/arrad 235/366 SELLER: Ashford P. Manning BUYER: Don Elwin Stacy, et ux I, J.S. Moorer, certify that this plat represents a survey made on the ground of the Ashford P. Manning property and that all improvements are within the property lines except as shown hereon. There are no visible encroachments on the property. Signed EXHIBIT "CT" Awl if 0.189 Ac. 1,601 so.cr) 4 • 'WIT ...id, R Manning Yo/. 20/, p.501 .,4vote A/ 89' 22'41krk/ PLAT OF ASHFORD P. MANNING PROPERTY .S. Moorer R.P.S. # 1572 P. GRAY LEAGUE, A-24 CITY OF HUNTSVILLE WALKER COUNTY, TEXAS SCALE 1"=30' MURRAY & MOORER, INC. March 1, 1974 Registered Public Surveyors Huntsville, Texas 77340 L#✓rs N Gai Rfo/ /OP 13 Tx STREET W7 Pan f /.vrw SA 2,4/ree ay If N. Ks /Poff dry,. A{ tr4 ,1416n nr 4.177 SCALE-4'401 1, J•S, Soarer, Req, Public Surveyor No. 1577, do hereby certify that thin plat repreounta a a.trvey made on the ground and that the dimensions of the tract were checked and no shortage or over- age was found that would affect the location of the' boundaries of the tract. All improvement■ lie Wholly within the boundaries of the property and there are ro vieible encroachment. on the pro - perty other than those shown hereon. PLAT Of DOWNY NIAL P11oMKTY P 4&i( Lf*iuu A -Z4 CITY OF i- 1tiNT *vILLK WALKER COUNTY, TtXA5 rxr: r.. nem 6 -4 -7G YORE 4 II woo= INC %sie eyed F ublk Bunayoes T. /L Ovr3@ Bentutily Taos TIM') EXHIBIT "D"