*1 Petitioners, W. R. COLEMAN et Petitioner, al., H. J. MANNING, et al., W. FORISTER, Jr., Bryan KING, Toby Respondent. Respondents. No. B-4609. No. B-4174. Supreme Court Texas. Supreme Court of Texas. Oct. 1974. 16, 1974. Oct.
Rehearing Nov. 1974. Denied Walters, F. L. Jefferson, Mahlon L.
Burke, Longview, petitioner. Cornelius, Cornelius, R. Cornelius & J. respondent.
Jefferson, for
PER CURIAM. Appeals has reversed of Civil the trial remanded the grounds: (1)
court two on findings his of fact and conclu-
court filed Respondent late that could
sions of law so request findings and conclu-
not additional Proce-
sions under Rule Rules Civil
dure; court erred (2) that the trial judg- his
basing findings, conclusions boundary
ment as the location parties’
line between the respective junior survey without
on location
regard survey of the senior location adjoining
and without evidence that survey
senior could not located on the be
ground. application refused,
for writ of error is no reversible interpreted
error. Our action portion approving
as Appeals relating Court of Civil application a ba-
Rules 296-299 or their
sis for the reversal and remand. None parties complained of the trial court’s respect to of fact findings
action with
and conclusions of there was no
point Appeals before Court of Civil phase
this of the case. *2 understood specifically
“This strip bor- of land only a one-foot cover with together edge, the water’s dering the waters the land the use directly north lies Bee Creek may be used space which each *3 in dockage. grantee Each purpose of boat of right the additional given is this deed the lands egress over ingress and property lie between the that grantor Hull, above the A. to Arlyn and Smith Each tracts. spaces described and/or the right to use given the grantee is Hearne, Babb & Cow- Maloney, Stayton, grants the immediately south of walk-way Austin, petition- for Stayton, den, W. John the to for of access herein made ers. tracts, provided no obstruc- that various walk-way upon that placed said tions are Robinson, Robinson, Malcolm Hooper & use such walk- prevent the free Austin, respondents. any grantees the herein way by and all of mentioned. DENTON, Justice. agreed expressly understood and “It is this cause. appeal of This is the second grants by herein that these grantees the Forister, Jr., and Plaintiffs, Bryan Dr. W. purchase the in connection with are made in suit brought property other owners
six grantor, which of other lands the from a County for for Travis the district court the frontage on have do not lands interests declaration of and is Austin. This Lake waters 2, Emmett in Lots 1 and Block Shelton permitting the purpose of for the made Subdivision, Survey Wilkinson-Sparks No. access to have lands such other owners of County, These Travis Texas. privileges herein Austin. to Lake through interests were claimed here- pass grantees from the shall granted Shelton, source of Emmett the common grants of such other purchasers in alleged rights in- title. Plaintiffs’ in such is made whether mention of land upon terests were in based deeds executed not; specifically being it conveyances or repre- by Emmett Shelton as well the that by grantees herein understood sentations made him to certain of per- herein are mentioned privileges prior vendees thereunder to execution of they as- nor are grantees, sonal to the they the instruments under which claim. except in connection with signable representations Those were to the effect such other lands. title to property question, in a most of 1-½ conveyance is of this acre “The intent tract located on Bee Creek in the privileges available Hills, make City had been Westlake reserved Sparks of land as a the owners enjoyment the use and Surveys, purchased who have purchasers of non-waterfront Chambers property grantor.” such lands from the the subdivision. tract The remainder of the was divided into twelve 1' x three 10' and Sterling Defendants, William Coleman along edge; l'x20' the water’s on portion remaining Holloway, acquired the 30, 1955, November parcel each small 1 and 2 in 1964. Lots conveyed by general warranty a deed to purpose non-waterfront owner trial court sustained for the first trial the In the dockage. disputed portion summary boat motion for defendants’ except deed reads: as to two fact issues: whether as a Holloway-Coleman following language, matter of plat of the Subdivsion record, grantees gives cast an unrestricted of Lots 1 and filed to use the full 420 foot plaintiffs’ title under the lot con- cloud contemplated improve- troversy ingress egress Bee and whether upon ments these lots would Creek: defendants with the interfere “ specifically ‘This understood by plaintiffs held under such deed. only strip to cover a one-foot of land issues, As to that the these the court held bordering edge, together the water’s and, express applied, terms of the 1955deed with the use land under the wa- therefore, defendants held Lots 1 and 2 directly ters of Bee lies Creek simple except fee for the one-foot space north of each used subject to the easements contained purpose dockage. for boat Each therein, which were limited to grantee given in this addi- *4 egress through thirty the easternmost feet egress ingress tional and over right of of the tract walkway along and use of the the lands that lie between grantor the waterfront. S, the property Arlyn Smith and A. granting summary After the judg- Hull, of the spaces to the above described ment, proceeded plans defendants with their grantee tracts. Each is given and/or to build a house on the tract. The walk-way house the right to use the immedi- completed was continuously and has been ately grants of the herein south made occupied. purposes of access the various tracts, provided that no obstructions appeals court of civil and reversed placed walk-way are upon said that remanded, holding: prevent the such free use of walk-way by any (a) pre gran- "... that and all of issues of fact the are ” tees sented herein as to the establishment mentioned.’ of an ease Coleman v. appurtenant by estoppel Forister, (Tex.1968). ment park 431 S.W.2d 3 purposes and [Emphasis related on the in in property original]. the suit (b) that fact may issues are or be court, Upon plaintiffs remand to the trial presented as meaning to the of the words petition rely solely amended their on the privileges’ ‘waterfront as used in the 1955 language of the 1955 Emmett Shelton deed that, deed (c) as a matter the 1955 request mandatory injunction and to re- gives grantees to the therein an un quiring removal of the house and restora- right restricted to use all property of the property original tion of the to its condi- ingress in suit for egress and to the wa court, judgment tion. After a trial to the terfront.” Coleman, Forister v. 418 S. egress was granting entered full W.2d (Tex.Civ.App. 565 - Austin across the entire tract the to the owners of 1967.) [Emphasis added]. strips, issuing requested one-foot the Upon appeal mandatory injunction. ap- this Court civil the court of refused plication, affirmed, appeals n. r. judg- e. On but modified motion for the rehear- ing requested we by eliminating provision were ment to note the to re- the rationale place our refusal of application property the reinstate the to the con- for writ error, prior n. r. in dition it in e. view was of three 1965. 497 alterna- June tive bases for the court of S.W.2d 530. appeals’ civil decision. A issued, points bring Petitioners error five pertinent stated in part: By points, peti- this court. their first two majority “A approves complain of the court the tioners of the court ruling holding of the appeals appeals plaintiffs’ pleadings court of civil of civil that in view of surrounding circumstances, may granted by the the the
903 ; plaintiffs Cozby v. argued writ) no trial It (Tex.Civ.App.1958, court. 710 appeal position after the first changed (Tex.Civ.App. Armstrong, 205 S.W.2d Yudin, ; entirely upon language Pokorny rely e.) and now the ref. n. r. 1947 writ deed; language does (Tex.Civ.App.1945, the and that the plaintiffs. (3rd Tiffany, Property claimed the Real writ); 3 § pro Here, expressly 1939). ed. appeals, it civil As the court of noted right (a) vides plead- plaintiffs is clear that amended their grantor that lie between “over the lands of first ings the belief that effect of the Arlyn A. property Smith appeal adjudicate meaning and was to Hull”; walk (b) the to use the effect of decision one-foot way immediately adjacent to the plaintiffs’ that issue favor eliminated access” to them. tracts “for necessity rely on associated causes of any No mention made of fraud, action estoppel pais, mutu- user, implied. Amend and none al at mistake the second trial in order to ob- petition questions ment of the to eliminate requested tain the relief. of fraud or concomitant had the removing effect of all issues of appeal par- Plaintiffs’ first was from a There summary judgment trial from case. and adverse find- fore, representations ings of evidence made remaining facts on the issues. The appeals purchasers Emmett court of civil Shelton remanded for trial the *5 concerning tracts fact issues as the use of the land in con to the establishment of an troversy ordinarily would appurtenant by easement be inadmissible estoppel for parol Royal related evidence and as rule. In meaning to the demnity Marshall, Company of the words v. 388 “waterfront S.W.2d privileges” as ; used in 176 (Tex.1965) Minzer v. First deed, the 1955 National making well as Dallas, (Tex.Civ. Bank 390 determination that S.W.2d 784 the same grant- deed App.1965, ed writ n. e.). “full” ref. r. privileges.
The first two inquiries are clearly recognized exceptions to th not by answered a parol determination that the apply evidence rule do here. The e contemplates full egress. 1955 deed contains no re ambiguity which Those terms indicate quires inherent in the explanation. See McCormick & owners of the pass Ray, dominant estates to (Supp. Texas Law of Evidence 1685 § through the servient They estate. do not obviously 1972at is it 169). Nor so incom imply linger to plete require recreational as to extrinsic evidence to purposes, or to exercise privi give it In the meaning. Id. at § leges. pleadings showing absence cause of language of the
going outside the pleadings Without and evidence estoppel, the equitable such as fraud or surrounding circumstances, plaintiffs are plaintiffs alone. on the instrument rely must rights granted entitled to by the instru shown, And, the deed alone as has been ment, and no more. No interest in real judgment cannot property passes by implication as incidental court. grant except to a what is neces reasonably
sary
however,
enjoyment.
to its fair
that much
recognize,
A
or
We
is
this suit
general
reservation
an easement in
attends
terms
of the confusion which
implies
per
opinion
curiam
at
unlimited
use
the result of our
reasonable
such
reasonably
opinion
as is
a divided
necessary
That
and con S.W.2d 2.
court;
venient
possible
judgment
and as little
and it is our
that the
burdensome as
were
opinion
Fishing
servient owner. Bland Lake
and its
Hunting
Fisher,
wrong,
Club
it is overruled.
v.
S.W.2d
Ranch, by conveyances
and for tracts
Eagle Rock
Drye
In
v.
is not at issue here. What
Court
1955 and
Inc.,
this
since
(Tex.1963),
364 S.W.2d
issue is the
extent of the
use the
at
maximum
rights to
no indefinite
held that
appurtenant
strips;
no
pleasure and easements
ranch for
of a 1000-acre
land
strips,
matter who owns the
such owners
conveyed along
with
enjoyment were
are limited to reasonable use
the servient
development in
adjoining
the absence
tract
access to them.
express
mention
such
Although
tracts.
deeds
the individual
and fourth points
Defendants’ third
Eagle
differences
there are factual
between
suitability
error concern the
of the manda-
case,
believe that
Rock
the instant
we
injunction
tory
granted by the trial court
equitable
of ac
concerning
decision
causes
appeals.
affirmed
the court of civil
controlling.
tion
nevertheless be
issues,
In view of
on the
our decision
express
opinion
we need
these issues.
plain
passed to the
No
judgments
Drye
the courts
by “private
below are
tiffs
dedication.”
reversed,
Ranch,
Inc.,
the cause is remanded to the
Eagle
supra,
Rock
Islands, Inc.,
204;
trial court for a determination of reason-
at
Burnham v. Davis
cf.
;
able access under the
deed.
(Fla.1956)
v. Bun
doctrine
in this
has
Court.
REAVLEY,
Ranch,
(dissenting).
Eagle
Inc., supra,
Rock
364 S.W.
Justice
appar
2d at 210.
been
Nor has there
(cid:127)
This
change
entitled
its
hold
ent, continuous,
necessary
use
respect
ing with
to the effect of the 1955
servient estate
such a
as would
manner
*6
deed;
is good
there
doing
reason for
so.
give plaintiffs
implied
appurte
an
easement
We
escape
cannot
acknowledging, how-
Drye
Ranch, Inc.,
Eagle
nant.
v.
Rock
ever,
court,
that plaintiffs, the trial
and the
supra, 207-208;
Castellaw,
Mitchell v.
Appeals (497
530)
Civil
S.W.2d
Tex.
(1952).
S.W.2d 163
accepted
have
faithfully applied
per
former
opinion
curiam
of this Court on
cannot
Since
deed alone
My
matter. 431
protest
2.
S.W.2d
judgment,
supplementary
and since against
present disposition
of all claims
compel
causes of action do not
the relief
for an
appurtenant.
easement
Upon receipt
granted by
court,
it follows that the
today’s
ruling, plaintiffs Forister et al
judgment below cannot stand. The 1955
are learning for the first time
since the
conveys
a reasonable
that consideration of their
strips
one-foot
and the
former
contentions
being
walkway,
more. This is the full
made and that the success of those conten-
extent of
granted
the relief which
tions is necessary for
They
plaintiffs.
cause.
are entitled to be heard and to make their
point
error,
Defendants’ fifth
record before having this claim denied.
contends the 1955 deed is null and void be-
my opinion
In
Ranch,
Drye Eagle
v.
Rock
cause it cannot be determined therefrom-
Inc.,
Cleary
(1922). JOHNSON, join JJ.,
WALKER
this dissent. MUTSCHER, Appellant, Jr., F.
Gus
v. Appellee. Texas,
The STATE of McGINTY, Appellant, Rush Texas, Appellee.
The STATE of Appellant, SHANNON,
Thomas C. Texas, Appellee.
The STATE of
Nos. 48160-48162. Appeals
Court of Criminal of Texas.
Sept. 24, 1974.
Rehearing Denied Nov.