¶1dissenting.
¶2I respectfully dissent. I would sustain appellants’ points of error. This court and the court below place great emphasis on the fact that Reservoir Lane was never formally accepted by the City of Groves. The majority also agrees with the trial court’s finding that the city “has, in a practical sense, abandoned” Reservoir Lane as a street.
¶3The courts of this state do not require that an acceptance by the public be express; an implied acceptance is sufficient. Gilder v. City of Brenham, 67 Tex. 345, 3 S.W. 309, 311 (1887); Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex.1978). There is evidence that Reservoir Lane had existed for thirty to forty years prior to trial, that it had been a shell roadway and then a blacktop roadway, that the city had performed some maintenance on the road, had installed a street light, traffic sign, street sign and used it for garbage collection. If an intention to dedicate is otherwise shown, as was done here by the deed, the public use of the land is sufficient to constitute a completed dedication. Viscardi, 576 S.W.2d at 19.
¶4Furthermore, the trial court’s findings on abandonment should not stand. An abandonment occurs when the use for which the property was dedicated becomes impossible of execution or the object of the use fails. Griffith v. Allison, 128 Tex. 86, 96 S.W.2d 74, 77 (Tex.Comm’n App.1936, opinion adopted). Neither is the case here. There is no evidence of any abandonment under the legal definition. In any event, appellee never pleaded abandonment and it must be pleaded as an affirmative defense or it is waived. San Jacinto Sand Co. v. Southwestern Bell Tel. Co., 426 S.W.2d 338, 344 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.), cert. denied, 393 U.S. 1027, 89 S.Ct. 622, 21 L.Ed.2d 570 (1969).
¶5*580The majority does not discuss finding of fact number seven which found that Reservoir Lane did not reach appellants’ property. This is an immaterial finding and provides no basis for refusing to grant the injunction. I would hold that the trial court’s findings are against the great weight and preponderance of the evidence and would reverse and remand. Since the majority fails to do so, I respectfully dissent.