*1 Brothers, v. drilled. In Guardian Trust Co.
Tex.Civ.App., the court 59 S.W.2d appellants in way put only “The
said: put have been position would dam- them
performance to award would be royalty. of their
ages measured the value to establish them
The burden was
value, thereof.” evidence they offered no but finding that the evidence
The trial court’s appellants suffered not show that
does damages is borne
recoverable
record. court is af- the trial
firmed.
Affirmed. FRIEDSAM, Appellant, Lou
Linda
v. Appellees. al.,
E. ULBRICHT et
No. 10564. Appeals of Texas. of Civil
Austin. 18, 1958. July
Rehearing 16, 1958. Denied *2 Sur- Loveridge
“b. All land said Clair vey said St. and in that formerly which was County, the Friedsam Ranch in said adjacent contiguous which is and' of Three above described tract (386) more Eighty-Six Hundred acres less, and which lies is situated and 1,020 below the contour line of feet above mean sea level con- (being the tour Buchanan). line of Lack rights, “c. And all all and corporeal incorporeal rights and and appurtenant belong- hereditaments ing to said Tract of Hundred Three Eighty-Six (386) less, acres more or rights ingress thereto from the waters of Lake egress Buchanan and therefrom to said Lake and thereof, privi- waters rights leges pertaining to said land which by were reserved the Grantors Cassie A. Friedsam and I. husband W. Fried- 16, sam in the August instrument dated Emory, 1930 in which Peck and Rock- Development wood Company is Gran- tee, and which is recorded in Volume 79, Pages 45-50 of the Deed Records County, Texas, of Burnet to which appellant. Burnet, Taylor, Bryce A. reference is made.” Hammond, Burnet, & Hammond Julius appellees were alleged that petition Austin, appellees. Franki, F. Prayer dispossessed defendant. possession, etc. had for title ARCHER, Chief Justice. plaintiffs sought relief In the alternative by appellees instituted This suit Declaratory Judgment Uniform under trespass try al- appellant in against 2524—1 et Act, Ann.Civ.St. art. Vernon’s ownership of leging appellant in a deed seq., claiming that 18, 1947, lands, appellees, dated Eighty-six Hundred Three “a. privileges land, less, rights and be- with all together out of more (386) acres appellees conveyed were longing thereto part of the John owned appellant and the St. Clair Survey No. 90 John by an instrument County, to her dated 54, partitioned in Burnet 1947, and recorded in Volume Texas, prem- the same lands and March being Records of the Deed 61-64 pages described ises subject County, to certain over- from Linda Lou Burnet dated June her privileges theretofore Heckman E. flow V. G. Emory, Peck and title to Ulbricht, predecessors in Volume recorded Company Development by an in- Rockwood Deed 373-4 Records Pages * * August 1930 and re- County, dated *. strument Burnet of Burnet deed contains this reservation: corded in Deed Records .The County, by the rights are now owned access right “Grantors reserve Authority. Lower Colorado River *3 to water line of formed the lake by places, such dam at and times by that further contended except dyke over the embankment and subject rights to virtue of deeds and of grantee, right and the such to use Authority they own the edge, water’s grantors, to the in 1020 surveys the land between the however, any waiving damages, claims contour line bank of and the liability by or any virtue of act of River, any have the vested or in event grantee, successors, assigns its or right ingress of free and unobstructed agents, in raising lowering and/or their Lake said waters of lands from the by water level lake said formed Buchanan, and unobstructed to the free and any dam or other act in connection egress of lands to the waters their construction, operation with the and/or Buchanan, upon go the land and to thereof, maintenance agreed it being surveys contour between land, the use any part of such lake for edge of the water’s line and the thereof, by grantors, at time when their lake from reaching the purpose of the use thereof is not by gran- desired re- rights with lands, all of and have tee, not held shall adverse ap- reserved were as spect to their lands rights and titles herein granted.” sought declara- a predecessor, and pellant’s legal and status rights of their tion Friedsam and Herman A. Linda Lou controversy, and respect matters to the suc- the children of and were Friedsam alternative, contend- further pleading of Fried- ceeded interests Cassie A. to the conveyed the appellant that at the time ed sam, partition a certain effected of and front lake appellees property to herein was the land involved and conveyed, and that being property was Friedsam, also partitioned Linda Lou property, land front acquiring lake were and Highway of lying all land north of Lake Buchan- waters fronting Lake, Lake and Buchanan covered Inks an, thereto privileges and rights with all per Cassie A. of contract between terms sought and in free thereof this and the use Emory, husband to and with and Friedsam reformation the deed. a of Development Com- Peck and Rockwood Bur- pany in the records of and recorded by excep- Defendant Friedsam answered County. net plea guilty general and a of not and tions denial. 1947, 18, Friedsam Linda On Lou S. Heck- Ulbricht and V. E. J. August A. Cassie On man for a stated consideration: husband, consideration, by for a stated “ * * * pieces, all those certain page Bur- deed recorded in Volume land, parcels lying of tracts Records, County granted Emory, net Deed portion in the Western being situated Development Company and Rockwood Peck Burnet, County State overflow, right to perpetual adjacent Texas, to the waters purposes and make use of inundate Lake, of and being operation with the of a dam in connection Survey St. Clair John an elevation of 1020feet above mean sea Loveridge B. No. John lands, and other more certain level No. and described metes and made, and were the lands recitations full as follows: bounds described, which a is the land were controversy as lying in this case beneath “Beginning at the Northwest cor- F. C. Rector the lake. ner of the waters Rocky acre tract and corner Lots 19 Northeast which is the 90; Ridge Survey No. Subdivision. John along a feet East 5458 “Thence The deed paragraph contains a as fol- Dorbandt partition between : fence lows the South survey along and also
this “(4) easements, ways ingress All Survey N. Clair St. John egress, rights all other SE which is the a fence corner 54 to every rights of character survey; corner of acquired by heretofore grantors or to *4 a fence 2546 “Thence North feet which are entitled incidental to of a Creek in the center corner or in connection with of the fore- survey; Northeast of this the corner going premises.” described lands and partition “Thence, along a West On trial day before the Court on the 5th the a of 2480 feet to fence distance September, 1957, jury, a a judg- without line; 1020 feet elevation contour plain- ment was rendered favorable the tiffs, and plaintiff decreed Dudley up the meanders “Thence and down Prade have and recover from the defend- Springs Creek with meanders of Cedar ants a tract of land with metes and bounds of the 1020 elevation contour . tract, including together the 386 acre with partitioned be- which is a fence line the lying to lands title under the Buchanan tract; tween Dorbandt and this Lake, and extending Prade’s title from the peninsula 440 across a “Thence West 1020 foot contour line to the East bank of the 1020 intersection the feet to River, the Colorado which bank is river side of the west line on the contour beyond far edge lake,- the water’s peninsula; description such is set specific as (omitting description) : Southwesterly “Thence, with 1020 feet of the elevation meanders mound and “Beginning at a stone intersection to its contour line northwest corner fence corner at the Sur- F. C. Rector line of the the West 403 C. Rector No. of the F. line of vey which is West No. northeast corner of the which is the tract; Dorbandt No. 90 and John which is also a northwest corner of partition “Thence, a along North tract; the Dorbandt approximately fence a distance point beginning, and con- feet to the feet; South 1180 “Thence bounds, taining within its metes * * * 10,420 feet “Thence West more or less.” of land acres River; bank of the to the east conveyed to the grantor In this deed the upstream with meanders “Thence and across lands an over grantees river N. 25 E. 1303 cor- feet to point from the nearest grantor owned ner; con- public to the lands located on a road veyed. a one-sixteenth Grantor retained upstream with the mean- “Thence oil, and other gas minerals. varas; interest the river 232 ders of upstream with the 8, 1956, “Thence mean- December the deed dated In feet; E. ders of river N. conveyed and Heckman there Ulbricht tract, except- acre Dudley Prade the 386 14,673 corner; feet to “Thence East Rocky Ridge Subdivision ing therefrom corner; “Thence South 2546 feet to also a 5.4 1. There specific and un- field notes place where the are feet to “Thence West 5458 is con- ambiguous land involved excep- that the with certain beginning, etc.” trolled field notes. tions. description of general There is to the Appellant points and are has five “ * * * overruling language: erred effect that parcels those or tracts pieces, certain * exception year statute the four ** recovery, adjacent waters plaintiffs’ limitation did not bar * * the lands title to granting Buchan- of Lake lying beneath the waters are calls is that all noted It an, to the granting erred in partition along distance course the 1020 contour line between : reads except call fence, the sixth bank, under because the deed river Southwesterly with “Thence, ambiguity no plaintiffs claim title contains feet elevation meanders evidence was insufficient and because there with the its intersection contour line to support parties finding that the *5 Rector of F. C. West line title in- plaintiffs deed under which claim line 403, which is the West No. 1020con- convey below the tended to Dorbandt tract.” line, holding that the 1020 tour and in line, and foot elevation line was a meander intent not that it We do believe was finally right go plaintiffs granting in to the deed wording of parties, and the line to obtain assumption, below the 1020 foot contour that the justify the does not lake, no to the waters of the because access be- line were lands below the 1020 contour in such was deed un- conveyed. ing der which claim. Appellant that she Friedsam testified go he not told Mr. Heckman that could We believe that the Court erred they the 1020 line said that was below and awarding in to title to Prade the lands un They getting right. see about would derneath Buchanan between the 1020 water, and and Ulbricht that at the time and foot contour line the east bank of the given bought Heckman she not land had doing acreage In so River. any to the land below thought sale of the conveyed by the deed to Ulbricht and Heck- line. man, to 372 acres stated of the con- testified Witness Schaffer Survey, St. Clair there be an would John Heckman, Ulbricht, had with versation additional 399 a acres and of recited con present, were and others Miss veyance of acres out of the John told were and Heckman Ulbricht and that there would be water, any ingress get they not would that acreage an additional of 256 acres con they edge, said “We’ll the water’s and veyed, plaintiffs recovering instead it.” care of that take for, Prade, appellant 386 acres as sued owner, present would title get to an addi the location as to testified E. Ulbricht approximately. tional 641 acres leading events property and of land and of a conver- purchase of the Linda Lou from Friedsam to The deed Waco; in that Miss Friedsam sation with is clear and unam- and Heckman Ulbricht land, much did have we not she that said Gibbs, witness, Surveyor and biguous it glad to sell because would be it she and lines without follow the diffi- able to her ranch on account of off from was cut except as terrain. culty front, water; a lake good that we had road; Miller, development get a Richey v. if we could Tex. In bought it was 386 acres which was to 170 A.L.R. held S.W.2d that trespass try front. in a suit in lake concerning the The 1020 does not V. testified foot contour line G. Heckman river, a conver- define purchase and of the sinuosities lies it at property a higher want- Acey great who much (A. M.) sation Gibbs elevation at with Friedsam, varying distances ed to Miss the river and can sell the meet- not be considered a that it front line of was lake meander river, a ing high Friedsam at Waco. but is water mark Miss given alone Lake, artificially an to were The above several deeds referred created lake. introduced evidence. boundary lines The rule as to re contour line 1020 foot elevation Tex.Jr., garding Sec lakes is set out in existence marked the boundaries 17, page tion 136: prior execu- interests in real estate to the held not “But in Texas it has been Heckman.
tion of the deed to Ulbricht edge of only margin, a call for a exception any ease- This made no mark, water, high or low water Rock- Emory, ment favor of Peck or bank of a excludes shore lake par- Development Company, wood but thereof, but the common- also bed terms, its ties knew of such deed and of for a extending law doctrine a call bounded 386 acres and the deed non-navigable the center stream to include the 1020 line did not apply thereof does not calls for line; pur- such and the land below boundary.” lake as only 386 chasers taxation assessed *6 assessed acres and Linda Lou Friedsam State, Tex.Civ.App., In Welder v. 196 taxa- of below the 1020 line the land ref., 868, call for S.W. it held that a er. is tion. water, margin, high of edge the low mark, a lake ex- water or shore or bank of is a 1020 contour line We believe the cludes the bed thereof. a meander line and fixed line and not boundary describ- westerly the lands of the in We believe the Court was error in deed, definitely locat- in appellees ed the could granting lying to the land used to line, on and had been ground ed the below the foot 1020 elevation in to in the deed appellees determine bounds giving the access to right of the Development Emory, Peck and Rockwood waters of Lake Buchanan when the Company years the lake several before is below such line.
created. depend upon Riparian rights 21, Tex.Jur., Boundaries, In 7 Section contiguous ownership land which is to of 139, page pertaining rule to meander the Durham, Woody Tex.Civ. water. v. the lines is set out. 219, ref.; App., er. 267 S.W.2d C.J.S. 607. page Waters § At time the deed was executed con- the of District Court is judgment the the veying 386 acres Miss Friedsam owned judgment is here rendered reversed any line ease- above the 1020 free of land except nothing take the ments, owned the below the she actually lands described by title to land encumbered easement and Heckman. Ulbricht al., deeds to by A. Friedsam et herein- Mrs. Cassie to, and the of con- above referred deed rendered. Reversed appellees veyance does an not contain Appellees’ Rehearing Motion for On exception if such as to easement and our Appellees are concerned lest conveyed, judg- was- to have been conveyed, depriving as them be construed to be such would have ment intended agreed entered judgment in the deed. included benefits been supra, Cavanaugh, Tex.Civ. v. and Davis styled Lou Linda Cause No. App., 149 Tex. District S.W.2d reversed et E. et al. al. v. Ulbricht in Heit However not in- 972. County. S.W.2d We did Court of Burnet kamp Tex.Civ.App., 265 Krueger, S.W. nor the v. prejudice judgment tend to ref., N.R.E., correctly con writ we 2d manner. rights conferred it determining stated, judgment strued not Since, we are as reasons to be essential issues. reversing remanding this case judgment final below in its preparing points Appellant has in these her brief lan- will, appropriate herein use plea relating to the of reformation rights safeguard protect the guage, 18, 1947, year statute (1) June parties judgment in Cause under the evidence, limitation, barred under the No. 3783. the granting (2) the court this relief appellees extending awarded lands mistake Appellees pleaded that mutual original east bank River parties the deed contracting only requested whereas pleading 18, 1947, Heckman from Friedsam to deed be reformed as to award title to so convey Ulbricht was not so drawn extending edge of Lake the waters upon abutting grantees fronting (3) Buchanan1 the evidence is insufficient Buchanan, making the the waters of Lake parties to show that the to the deed intend- bound- lake rather than line the the contour convey ed it lands between ary; access grantees so as to give elevation contour bank of and the east times, rights including to the lake at all Colorado River. reserved to the in the L. grantors C. easement, R. land below A. and title to the Appellees in their brief have counter- the contour line. point they in which seek to sustain the plea their for reformation dispose specifically We not did in support and evidence thereof however recovery opinion. ground original our in. unequivocal make this statement: *7 a trial court’s general rule is that A plaintiffs’ “The correct status of theory on will sustained judgment be (reformation) trial Third Count evidence pleadings supported reached it was never court McDonald, Texas law. and authorized decision, held since the trial court for Practice, 16.10(d), p. Sec. Vol. Civil meander line was a contour Company, 1303; Parker Petroleum Laws v. evidence, being lake under the 398, reversed Tex.Civ.App., 237 S.W.2d boundary, the deed and construed 430, 242 164. S.W.2d Tex. conveying as lake. pass occasion to The trial court no had parties general rule Another is Third Count.” on In to trial on Rose are entitled facts. Baker, extending judgment ap- 143 Tex. 183 S.W.2d view of the v. In edge because pellee’s recovery beyond was reversed accept “that the trial court dis reflected we are inclined record negligence interpretation the claims on of the record posed appellee’s based on the facts.” no showing a trial determination issues without plea under their for reformation raised sometimes difficult determine is It the deed of 1947. or not been a trial there has whether opinions general our fact issues. Witness order remand is but the essential Our Company, opinions guided by v. Parker Petroleum Trial will Court in Laws pleadings accuracy 1. The sustain of this statement. sub- if the facts are the law as to
herein , upon retrial. stantially same Rehearing grant- is
Appellee’s for Motion judgment revers- our to the extent that
ed aside rendering this cause is set
ing and remanded. reversed and cause is now part; overruled.
Granted YOUNGER, Appellant,
Annie Webb
v. YOUNGER, Appellee.
Rexie Lessie
No. 3572. Appeals Texas. Civil
Waco. July 10, 1958. Corsicana, Jacobs, appellant. for C. Julius Aug. 14, McKie, Rehearing Dawson, & William Dawson Denied 1958. Corsicana, appellee.
McDONALD, Chief Justice. is a case in
This hus- divorce plaintiff against band a divorce defendant, the wife addition award- personal judgment against wife ed $4,500; being such sum defendant ½ *8 of the enhancement in amount value wife, separate property of certain Trial found to have been improved community funds. judgment awarding From that $4,500 personal plaintiff defendant, appealed. against has defendant plaintiff reflects that de- The record sixties; in their fendant are both sepa- on 5 December married 1953; February at the rated on marriage plaintiff nothing; had time of defendant, marriage, at the time plaintiff home and defendant owned marriage; owned in after lots in Cor- lived Marlin; sicana, Ennis and owned a farm